THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

 United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

 

 

 

Secretary of Labor,

 

Complainant,

 

                        v.

OSHRC Docket No. 17-0138

Home Rubber Company, LP,

 

           Respondent.

 

 

 

 

APPEARANCES:         

                        

Terrance Duncan, Esquire

U.S. Department of Labor

New York, New York

For the Secretary

 

  Randall Schauer, Esquire

  Fox Rothschild, LLP

Exton, Pennsylvania       

For the Respondent

 

BEFORE:  Carol A. Baumerich

                Administrative Law Judge

 

 

DECISION AND ORDER

On October 27, 2016, the Occupational Safety and Health Administration (OSHA) issued a Citation and Notification of Penalty to Home Rubber Company, LP (Home Rubber or Respondent). Home Rubber filed a timely notice of contest bringing this matter before the Occupational Safety and Health Review Commission (the Commission), pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (the Act).

OSHA opened an investigation at Home Rubber’s facility in response to a May 6, 2016 accident that seriously injured an employee. As a result, OSHA cited Home Rubber for thirty violations with a total proposed penalty of $180,592. Of the cited violations, two were classified as willful, twenty-three as serious, and five as other-than-serious.

Home Rubber was cited for violations of the noise exposure, housekeeping, chemical storage, fire extinguisher, lockout-tagout, machine guarding, powered industrial truck, electrical, bloodborne pathogen, accident reporting, training, recordkeeping and hazard communications standards. In particular, the Secretary alleges that Home Rubber exposed its mill operators to amputation and other injuries, because the ingoing nip points on its rubber mills were not guarded, and willfully ignored requirements to protect its mill operators from hearing loss.

A two-day hearing was held in Trenton, New Jersey on April 9-10, 2018. Five witnesses provided testimony: OSHA Compliance Officer (CO) Marie Lord, Steven Anderson (analytical chemist for OSHA), Richard Balka (owner and president of Home Rubber), James Bole (plant manager for Home Rubber), and William Howard (Secretary’s expert). Both parties filed post-hearing briefs, including reply briefs.

  Respondent asserted three primary arguments. First, Respondent argues that guarding the ingoing nip points on its mills was infeasible and the Secretary did not prove guarding was feasible. (R. Br. 23-28). As discussed below, the burden for the affirmative defense of infeasibility rests with Respondent.

Secondly, Respondent argues the lack of attention to safety training and oversight was due to turnover and vacancies in the safety and compliance manager’s position since 2006. (R. Br. 1). As discussed below, the argument is rejected.

Finally, Respondent asserts the willful and serious citations should be reclassified to other-than-serious if they are affirmed. The classification for each citation item is discussed below.

Key Issues

The key issues to resolve are:

1.  Did Home Rubber willfully violate the requirements to provide audiometric testing for its employees operating Mill Three?

2. Was it infeasible to guard the ingoing nip points on the Chrome Mill, Kobe Mill, Mill Three, and Mill One?

3. Are the willful and serious violations properly classified?

4. Did the Secretary prove his prima facie case for all thirty alleged violations?

For the reasons discussed below, the citation items are affirmed and a total penalty of $180,592 is assessed.

JURISDICTION

Based upon the record, I find that at all relevant times Respondent was engaged in a business affecting commerce and was an employer within the meaning of sections 3(3) and 3(5) of the Act. I also find that the Commission has jurisdiction over the parties and subject matter in this case. (Tr. 9-11).

FACTS

The accident

  Home Rubber is a small specialty rubber manufacturer with 36 employees that has been in business since 1881. (Tr. 342, 344). Home Rubber manufactures specialty rubber products, including hoses, belts, tubes, gaskets, lathe-cut, and sheet rubber to its customers specifications. (Tr. 341-42).

Just before noon on Friday, May 6, 2016, employee J.L.1 was processing rubber on the Chrome Mill when his left hand was pulled into the ingoing nip point at the mill’s rollers.2 (Tr. 426-27; Ex. P-5). J.L. immediately pulled the machine’s brake cord to reverse the roller and free his hand. (Tr. 28; Ex. P-5). The maintenance manager, R.B., took Employee J.L. to the factory’s lab area, where R.B. applied pressure to the wound. (Tr. 427). Emergency services were notified, and the employee was taken to the hospital by ambulance. (Tr. 427).

  After J.L. was taken to the hospital, the maintenance manager, R.B., and maintenance employee, V.D., cleaned up the blood from the accident. (Tr. 334-35, 427-28). Richard Balka, company owner, was nearby and made sure the area was cleaned with bleach. (Tr. 428). The maintenance manager made sure the cleaning debris was sealed in a trash bag. (Tr. 428).

Mr. Balka went to the hospital later that afternoon and stayed until J.L. was taken to surgery. (Tr. 428-29). On Sunday, Mr. Balka learned that four of J.L.’s fingers were so damaged they had been surgically amputated. (Tr. 429; Ex. P-17, p. 3). OSHA was notified of the hospitalization on Monday, May 9, 2016. (Tr. 102).

Home Rubbers product

Home Rubbers specialty products were manufactured on four of Home Rubber’s mills: Mill One, Mill Three, the Chrome Mill, and the Kobe Warm-up Mill. (Ex. P-17, p. 3). Five employees operated these mills. (Tr. 344-45).

Most of Home Rubber’s mills were in the main mill room, which was about 150 feet long by 88 feet across. (Tr. 371). The frequency of a mills use was related to the customer order being processed. (Tr. 343-44). For example, Mill Three was used to produce most of the rubber compounds using carbon black. (Tr. 370, 376). Mill One was used to produce compounds without carbon black. (Tr. 371). A mill could be used continuously for weeks and then not used for a few weeks. (Tr. 344).

Each mill had two large rollers that rotated toward each other to create an ingoing nip point. (Tr. 410, 412). The roller on a mill was about 20 inches in diameter. (Tr. 410, 423). The two rollers moved at slightly different speeds to create friction. (Tr. 410). The friction created heat which broke down the ingredients to create a rubber compound. (Tr. 411). A typical batch of rubber compound used about 145 pounds of natural rubber and took about 20-25 minutes to mix. (Tr. 415).

Company ownership and management

In 1996, Richard Balka purchased Home Rubber along with two partners, Steve Kelly and Norman Zigler. (Tr. 345). Mr. Kelly was responsible for sales, Mr. Balka was responsible for production, and Mr. Zigler was responsible for safety, compliance, and human resources. (Tr. 346). In 2006, Mr. Balka purchased Mr. Ziglers share of the company and became the sole owner. (Tr. 346). Mr. Kelly had left the business sometime before 2006. (Tr. 346).

When Mr. Zigler left the company in 2006, Donald Slowicki took over safety and compliance duties. (Tr. 346). Mr. Slowicki had been a Home Rubber employee since 1997. (Tr. 347). Upon Mr. Slowickis death in 2012, his assistant, Michael Strasser, took over the safety and compliance duties. (Tr. 347). Mr. Strasser was the safety and compliance manager for about 14 months. (Tr. 347).

Home Rubber did not have a safety and compliance manager for some time after Mr. Strasser left. (Tr. 346). Tim Fisher was eventually hired as the safety and compliance manager and worked for Home Rubber for about two years; he was responsible for compliance with OSHA standards at the time of the May 2016 inspection. (Tr. 347, 353). Mr. Fisher reported directly to Mr. Balka. (Tr. 348).

Jim Bole was Home Rubber’s plant manager. (Tr. 347-48). The maintenance manager for Home Rubber was R.B. (Tr. 28).

The 2016 OSHA inspection

  In response to the May 6 accident, CO Marie Lord opened an investigation of Home Rubber. She visited Home Rubber’s facility on May 16, 20163 and on June 2, 2016. (Tr. 23, 43). The CO observed and photographed conditions throughout the facility. The CO observed electrical cords, a chemical storage area, forklifts, and various machines. She recorded video of employees working at the mills. (Tr. 196-207). The CO interviewed employees and management. (Ex. P-4). Mr. Balka provided records of safety policies, training records and other documents that were stored in Mr. Ziglers old office. (Tr. 351, 353, 426).

While near the Chrome Mill, CO Lord found that she had to shout when speaking to Mr. Balka, who was an arm’s length away. (Tr. 37). In her experience, this generally indicated a noise level over 85 decibels (dBA). (Tr. 37). She noticed the operator of the Chrome Mill wearing music-type headphones and was not using earplugs. (Tr. 38). She noted that Home Rubber did not require its employees to use hearing protection in the Chrome Mill room; Mill Three was the only area that required the use of hearing protection. (Tr. 38)

On her June 2 visit, CO Lord conducted audiometric testing for the operators of the Chrome Mill and Mill Three. (Tr. 96; Ex. 29, p. 1). The employee operating the Chrome Mill wore a dosimeter for 406 minutes that day. (Tr. 95-96; Ex. P-29, pp. 1, 6). The employee operating Mill Three wore a dosimeter for 480 minutes. (Tr. 95-96; Ex. P-29, pp. 1, 8). The results showed that Mill Three operator had an exposure level at 91.8 dBA and that the Chrome Mill operator had an exposure level at 89.5 dBA. (Tr. 98-99; Ex. P-29, p. 3).

  The CO observed significant dust accumulation on both her May 16 and June 2 visit to Home Rubber’s factory. (Tr. 30, 33, 36; Exs. P-6, P-7). She could see dust buildup on the walls, floors, machines, plastic curtains, and machine canopies. (Tr. 33-34, 36). The chemical safety data sheets provided by Mr. Balka showed some of the chemicals used in the rubber compounds were either explosive or combustible in nature. (Tr. 35). The CO collected a dust sample and sent to it to OSHA’s Salt Lake Technical Center (SLTC) to test for combustibility and explosibility. (Tr. 27, 221-22). The results of the SLTC’s testing showed the dust had explosive properties. (Tr. 28-29, 243; Ex. P-39).

Home Rubbers 1999 noise audit

In 1999, safety and compliance manager Zigler asked the state of New Jersey to conduct a voluntary noise audit. Three areas were tested for excessive noise levels. The results showed a noise level at Mill Three that required an operator to use hearing protection.4 (Tr. 40-41, 349; Ex. P-30, p. 12). The states testing report explicitly stated that OSHA’s requirements at 29 CFR § 1910.95 (occupational noise exposure) must be followed and the report stated that annual and baseline audiograms were required for Mill Three operators and must be documented. Id. Further, the report stated that a copy of OSHA’s noise standards was provided to Home Rubber during the audit. (Ex. P-30, p. 13). For a few years after the 1999 audit, Home Rubber provided audiograms and hearing protection for any employee that worked at Mill Three. (Tr. 349). The Chrome Mill was added to the production floor in 2007 so it was not evaluated during the audit. (Tr. 342-43, 354-55).

ANALYSIS

To establish a violation of an OSHA standard, the Secretary must prove that: (1) the cited standard applies; (2) the terms of the standard were violated; (3) one or more employees had access to the cited condition; and (4) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition. Astra Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).

THE CITATIONS

Applicability — All citation items

  Home Rubber used chemicals, forklifts, mill machines, and electrical equipment in its rubber production. Home Rubber was cited for safety violations related to housekeeping, noise, injury reporting, electrical, forklifts, compressed air settings, bloodborne pathogens (exposure control), and hazard communications. I find the standards cited are applicable to Home Rubber and this element of the Secretary’s case is proved.

Knowledge — All citation items

To establish his prima facie case, the Secretary must prove the employer either knew, or with the exercise of reasonable diligence could have known, of the violative condition. Revoli Constr. Co., 19 BNA OSHC 1682, 1684 (No. 00-0315, 2001). The employer's knowledge is directed to the physical condition that constitutes a violation. Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 1995) (Phoenix). It is not necessary to show that the employer knew or understood the condition was hazardous. Id.

Reasonable diligence for constructive knowledge includes the “‘obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence”’ of hazards. Pub Utils. Maint., Inc. v. Sec'y, 417 F. Appx 58, 63 (2d Cir. 2011) (unpublished) (PUMI) (citing North Landing Line Constr. Co., 19 BNA OSHC 1465, 1472 (No. 96-721, 2001) (NLLC)).

Knowledge is imputed to the employer “through its supervisory employee.” American Eng'g & Dev. Corp., 23 BNA OSHC 2093, 2095 (No. 10-0359, 2012) (AEDC) (citations omitted). The formal title of an employee is not controlling. Id. The Commission has imputed the knowledge of crew leaders and foremen. Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2069 (No. 96-1719, 2000) (citations omitted); see generally, Penn. Power & Light Co., 737 F.2d 350, 357-58 (3d Cir. 1984) (crew leader is a supervisory employee). An employer has constructive knowledge of conditions that are plainly visible to its supervisory personnel. See Hamilton Fixture, 16 BNA OSHC 1073, 1091 (No. 88-1720, 1993) (Hamilton).

Knowledge particular to each citation item is discussed below. For most of the citation items, the violative condition was in plain view. According to Mr. Balka, managers were in the production area “all the time every day.” (Tr. 345). Plant manager, Mr. Bole, stated that he routinely travelled through the various departments. (Tr. 330). Mr. Bole and the maintenance manager told the CO they routinely inspected the facility for safety hazards. (Tr. 35-36). Generally, knowledge is proved because management employees were routinely in the production area for conditions that were in plain view or because Home Rubber had a written policy that mirrored OSHAs requirement.

Citation Classification – All citation items

The citations at issue were classified as willful, serious, or other-than-serious. Respondent asserts that many of the willful and serious citation items should be classified as other-than-serious because there was a low risk of harm and Home Rubber had promptly abated the violations. (R. Br. 3, 7, 17-22, 29-35, 37).

A willful violation is “one committed ‘with intentional, knowing or voluntary disregard for the requirements of the Act or with plain indifference to employee safety.” Burkes Mech., Inc., 21 BNA OSHC 2136, 2140 (No. 04-0475, 2007) (quoted cases omitted) (Burkes).

The Act states that “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.” Sec. 17(k) of the Act; 29 U.S.C. § 666(k). A serious classification is established upon determining that serious injury is the likely result should an accident occur.”  Pete Miller, Inc., 19 BNA OSHC 1257, 1258 (No. 99-0947, 2000).

The Act does not define other-than-serious; however, the Commission has stated that an other-than-serious violation “is one in which there is a direct and immediate relationship between the violative condition and occupational safety and health but not of such relationship that a resultant injury or illness is death or serious physical harm.” Crescent Wharf & Warehouse Co., 1 BNA OSHC 1219, 1222 (No. 1, 1973) (Crescent).5 As discussed below, I find the citations were properly classified as issued and have not downgraded the items cited as serious and willful.

THE NOISE EXPOSURE VIOLATIONS

  The analysis of the four citation items related to violations of the hearing protection standard (willful citation items 2.1a and 2.1b and serious citations items 1.2 and 1.3) follows.

Willful Citations - Citation 2, Item 1a & Citation 2, Item 1b

Citation 2, Item 1a alleged a violation of 29 C.F.R. § 1910.95(g)(5)(i).

 

(g) Audiometric testing program. . ..

(5) Baseline audiogram. (i) Within 6 months of an employee's first exposure at or above the action level, the employer shall establish a valid baseline audiogram against which subsequent audiograms can be compared.

 

Citation 2, Item 1b alleged a violation of 29 C.F.R. § 1910.95(g)(6).

(g) Audiometric testing program. . ..

(6) Annual audiogram. At least annually after obtaining the baseline audiogram, the employer shall obtain a new audiogram for each employee exposed at or above an 8-hour time-weighted average of 85 decibels.

 

The Secretary alleges that mill operators exposed to noise above the action level6 had not received baseline audiograms within 6 months of the employees first exposure. The Secretary further alleges that mill operators exposed to noise above the action level had not received annual audiograms. (S. Br. 4-5). Respondent contends that, at most, it was unintentionally negligent in not providing the required audiometric testing for its employees. (R. Br. 13).

For the following reasons, I find that the Secretary established violations of 29 C.F.R. § 1910.95(g)(5)(i) and 29 C.F.R. § 1910.95(g)(6).

The standard applied and employees were exposed.

  The June 2 audiometric monitoring showed employees who worked at the Chrome Mill and Mill Three were exposed to noise above the action level of 85 dBA. (Tr. 96; Ex. P-29, p. 3). Home Rubber was required to provide baseline and annual audiograms for employees working on the Chrome Mill and Mill Three. The cited standards apply.

The five employees that operated the two mills at Home Rubber were required to have baseline and annual audiograms. Employees were exposed to the cited hazard.

The terms of the standard were violated.

Respondent offered evidence of a few audiograms provided to mill operators in 2000 and 2002. (Tr. 100-01, 353; Ex. P-30, pp. 6-10). The safety and compliance manager initially responsible for obtaining the employees’ audiograms, Mr. Zigler, had left Home Rubber in 2006. (Tr. 96, 101). The CO determined that only one of the five mill operators, the injured employee, had received a baseline audiogram. (Tr. 96-97, 100-01; Ex. P-30, pp. 3, 6-10). Neither of the two employees monitored on June 2 had received a baseline or annual audiogram. (Tr. 97, 101). One had worked for Home Rubber for about one year and the other had worked for Home Rubber for eleven years. (Ex. P-29, p. 3). Respondent does not dispute baseline and annual audiograms had not been provided to the operators of Mill Three and the Chrome Mill. (R. Br. 13).

I find Respondent did not provide baseline or annual audiograms and thus violated the cited standards.

Home Rubber had knowledge of the hazard.

The Secretary must prove “the employer knew or, with the exercise of reasonable diligence could have known of the hazardous condition.” PSP Monotech Ind., 22 BNA OSHC 1303, 1305 (No. 06-1201, 2008) (PSP) (citations omitted). Knowledge is directed to the physical conditions that constitute the violation and does not require the employer to know or understand the condition was hazardous. Phoenix, 17 BNA OSHC at 1079-1080.

  Home Rubbers documents demonstrate knowledge that audiometric testing was necessary. Knowledge is also demonstrated through Home Rubber’s records of audiometric testing it conducted in 2000-2002. (Tr. 97, 100-01; Ex. P-30, p. 11).

The 1999 noise audit results showed that employees operating Mill Three were exposed to noise levels above the action level. (Ex. P-30, p. 12). OSHAs requirements for audiograms were provided to Respondent during the 1999 audit. (Ex. P-30, p.12). Mr. Zigler, the safety and compliance manager, received the audit report. The report remained available to company president, Mr. Balka, after Mr. Ziglers departure. (Tr. 353-54). Home Rubber’s written Hearing Protection Policy was developed after the 1999 audit. (Tr. 346, 349-50, 353; Ex. P-30, pp. 6-10). The Policy stated that employees working on Mill Three would be provided baseline and annual audiometric tests. (Tr. 96, 350-52; Ex. P-30, p. 11).

Mr. Zigler’s actual knowledge of the requirement for audiograms is imputed to Respondent. See Caterpillar, Inc., 17 BNA OSHC 1731, 1732 (No. 93-373, 1996), affd, 122 F.3d 437 (7th Cir. 1997) (corporate knowledge is imputed from current and past agents). Further, Mr. Balka oversaw production and had been the owner of Home Rubber since 1996. (Tr. 340, 346). Mr. Balka knew that after the 1999 noise audit Mill Three operators were required to use ear protection. (Tr. 352-53). Mr. Balka admitted that it was likely he had reviewed the Hearing Protection Policy document when it was issued. (Tr. 351-52). Mr. Bole, plant manager, knew that a noise protection plan had been developed in the past. (Tr. 330). Both Mr. Bole and Mr. Balka told the CO that the testing had stopped when a previous manager left the company many years before. (Tr. 96). Respondent had actual knowledge audiometric testing was required for the operators of Mill Three.

Further, Respondent had constructive knowledge that audiograms were needed for the operators of the Chrome Mill. The hazardous condition was readily apparent because the Chrome Mill was so loud that it was necessary to shout when having a conversation near the machine. See Hamilton, 16 BNA OSHC at 1091. (An employer has constructive knowledge of conditions that are plainly visible to its supervisory personnel). Yet, Mr. Balka took no action to determine if audiograms were needed to protect the Chrome Mills operators from hearing loss. (Tr. 355). See PUMI, 417 F. Appx at 63 (citing NLLC, 19 BNA OSHC at 1472) (constructive knowledge where employer did not make reasonably diligent actions to inspect, anticipate, or prevent hazardous condition).

  I find Respondent had knowledge that audiometric testing was required for operators of Mill Three and the Chrome Mill.

Willful Classification

Respondent asserts a willful classification is not merited because it was merely unintentionally negligent.7 (R. Br. 13).

A willful violation is “one committed ‘with intentional, knowing or voluntary disregard for the requirements of the Act or with plain indifference to employee safety.” Burkes, 21 BNA OSHC at 2140; see also, Bianchi Trison Corp. v. Sec’y, 409 F.3d 196, 208 (3d Cir. 2005) (“Although the [OSH] Act does not define the term willful, courts have unanimously held that a willful violation of the [OSH] Act constitutes an act done voluntarily with either an intentional disregard of, or plain indifference to, the [OSH] Act's requirements.”).  

The Secretary must show that the employer was actually aware, at the time of the violative act, that the act was unlawful, or that it possessed a state of mind such that if it were informed of the standard, it would not care.Burkes, 21 BNA OSHC at 2140 (citations omitted). A willful violation is differentiated by heightened awareness of the illegality of the conduct or conditions and by a state of mind of conscious disregard or plain indifference.” E. Smalis Painting Co., Inc., 22 BNA OSHC 1553, 1569 (No. 94-1979, 2009)

Five employees operated the mills at Respondents facility. (Tr. 344-45). Respondents written Hearing Protection Policy required it to conduct baseline and annual audiograms for operators working at Mill Three. (Ex. P-30, p. 11). The Policy also required the operators of Mill Three to use hearing protection. (Tr. 96, 350-52; Ex. P-30, p. 11). Records show no audiograms had been conducted since 2002.8 (Ex. P-30, pp. 6-10). The CO was prompted to conduct a noise study because she had to shout to have a conversation in the production area. (Tr. 37). Both Mr. Bole and Mr. Balka knew Home Rubber had noise protection requirements. (Tr. 330, 335-54). Mr. Bole and Mr. Balka were in the rubber production area daily and could hear the noise at Mill Three. (Tr. 330, 334, 393). Despite this daily reminder, neither took action to ensure employees were receiving baseline and annual audiograms. Further, when the Chrome Mill was added to the facility in 2007 there was no attempt to determine if the noise levels were above the action level. (Tr. 355). Home Rubber knew of the requirements of the standard and chose to disregard the requirements.

Further, Mr. Balka had a heightened awareness of the need for audiograms. Home Rubber’s Hearing Protection Policy was developed after the state of New Jersey conducted a noise audit of the facility and determined that Mill Three operators were exposed to noise levels that required baseline and annual audiograms to comply with OSHA standards. As the owner of Home Rubber, Mr. Balka was aware Mr. Zigler, who had initially implemented the hearing program, had left the company in 2006 and thus his safety and compliance duties would need to be assigned to someone else. Mr. Balka also knew there had been significant turn-over in the safety and compliance position since then.

  Respondent’s assertion, that the violation was not willful because it was simply negligent and had no bad intent, is rejected. The Secretary is not required to prove a bad motive to support a willful classification. See Kaspar Wire Works, Inc. v. Sec’y, 268 F.3d 1123, 1129 (D.C. Cir. 2001) (an employer’s action may be willful without showing evil intent or bad motive); see generally, Hartford Roofing Co., 17 BNA OSHC 1361, 1363-64 (No. 92-3855, 1995) (violation was not willful where employer had implemented significant safety measures).

  I find Respondent willfully violated the cited standard. Respondent learned from a 1999 audit that it needed a hearing protection program. Respondent developed a Hearing Protection Policy, with requirements for the operators of Mill Three that mirrored OSHA standards. Home Rubber ignored the requirements for baseline and annual audiograms set forth in its Hearing Protection Policy. Documents show no audiograms were conducted after 2002. As owner of the company Mr. Balka knew the person responsible for implementing the policy left the company in 2006, yet he made no effort to ensure the policy was followed thereafter. There is no evidence of an attempt to provide the required baseline and annual audiograms for employees that operated Mill Three. Respondent did not implement its hearing policy.

Further, Respondent made no effort to determine if the Chrome Mills operators were exposed to excessive noise. To have a conversation near the Chrome Mill, the CO had to shout. (Tr. 37). Despite the noise level, and the existing hearing policy, Respondent took no action to provide audiograms to the operators of the Chrome Mill. (Tr. 342-43).

Despite the apparent noise level of the Chrome Mill, the documented noise exposure at Mill Three, and the requirements of its own hearing policy, Home Rubber did not provide audiograms for its mill operators. Respondent did not simply forget some of the required audiograms; it provided no audiograms to employees for at least ten years. Home Rubber knew of the requirements for audiograms and made no effort to comply.

  I find the willful classification is supported for Citation 2, Items 1a and 1b.

Penalty

  The maximum penalty for a willful violation is $124,709.9 28 USC § 666(a), 29 C.F.R. § 1903.15(d)(1) (2016). Section 17(j) of the Act requires the Commission to give due consideration to four criteria in assessing penalties: the size of the employer’s business, the gravity of the violation, the employer’s good faith, and the employer’s prior history of violations. Compass Envtl, Inc., 23 BNA OSHC 1132, 1137 (No. 06-1036, 2010), affd, 663 F.3d 1164 (10th Cir. 2011). The gravity of the violation is generally accorded greater weight. See J. A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).

The Secretary proposed a combined penalty of $74,825 for Citation 2, Items 1a and 1b. The penalty was based on a greater gravity due to the risk of hearing loss from operating mills for a full shift, several times a week. (Tr. 38). The size adjustment of 40% reduced the penalty to $74,825. (Ex. P-29, p. 2; Ex. P-2). I find the penalty adjustments are appropriate for these violations. I affirm the willful classification for both items and assess a combined penalty of $74,825.

Citation 1, Item 2 – Alleged serious violation of 29 C.F.R. § 1910.95(d)(1)

(d) Monitoring. (1) When information indicates that any employee's exposure may equal or exceed an 8-hour time-weighted average of 85 decibels, the employer shall develop and implement a monitoring program.

 

The Secretary alleges that Respondent did not implement a noise monitoring program for employees who were exposed to noise at an 8-hour time weighted average above 85 dBA (action level) at the Chrome Mill. (S. Br. 16). Respondent asserts the Chrome Mill was added in 2007 so it was not at the facility during the 1999 noise audit. (Tr. 342-43). Further, Respondent asserts that Mr. Balka thought the Chrome Mill would have a lesser noise level because it was smaller than Mill Three. (Tr. 355; R. Br. 12).

  For the following reasons, I find that the Secretary established a violation of 29 C.F.R. §1910.95(d)(1).

The standard applied, employees were exposed to the hazard, and the standard was violated.

  As discussed above, June 6 audiometric monitoring demonstrated the operator of the Chrome Mill was exposed to noise above 85 dBA. Thus, a monitoring program for operators of the Chrome Mill was required. The standard applied.

  The employees operating the Chrome Mill were exposed to cited hazard. Home Rubber violated the cited standard because it did not have a noise monitoring program for the operators of the Chrome Mill. Employees were exposed and the standard was violated.

Home Rubber had knowledge of the hazard.

Mr. Balka knew the 1999 noise audit revealed that operators of Mill Three needed hearing protection. Respondents safety and compliance manager at the time, Mr. Zigler, received this report and his knowledge is imputed to Home Rubber.