________________________________
                                :
SECRETARY OF LABOR,             :
                                :
          Complainant,          :
                                :
          v.                    :
                                :
A.E. STALEY MANUFACTURING CO.,  :
                                :
          Respondent.           :   OSHRC Docket No. 91-0637 and
                                :                    91-0638
             and                :
                                :
INTERNATIONAL UNION OF ALLIED   :
INDUSTRIAL WORKERS OF AMERICA,  :
LOCAL 837                       :
                                :
      Authorized Employee       :
      Representative            :
________________________________:

*/DECISION/*//

BEFORE: ROGERS, Chairman; VISSCHER and WEISBERG, Commissioners.

BY THE COMMISSION:

//A.E. Staley Manufacturing Co. maintains a large multi-building
facility in Decatur, Illinois where it is engaged in grain wet milling
and other activities. As a result of a lengthy inspection begun in July
1990, Staley received two separate sets of citations alleging a number
of violations of the Occupational Safety and Health Act ("the Act"), 29
U.S.C. §§ 651-678. The two sets of citations were designated Docket Nos.
91-0637 and 91-0638.

Docket No. 91-0637 contains two citations. Citation 2, items 1(a) and
1(b) alleged willful violations of the asbestos standard at 29 C.F.R. §
1910.1000(j)(2)(i) for failure to label damaged asbestos insulation on
pipes at eleven locations throughout the site and 29 C.F.R. §
1910.1001(k)(1) for failure to clean asbestos debris at four locations
at the site. A combined penalty of $8000 was proposed by the Secretary.
While Staley does not dispute the existence of the violation, it
contends that the violations were not willful. Administrative Law Judge
James H. Barkley affirmed this citation as willful and assessed a
combined penalty of $8000.

Citation 2 items 2(a) and 2(b) alleged that Staley willfully violated
the Hazard Communication (HazCom) standards at 29 C.F.R. § 1910.1200(h)
by failing to provide HazCom training for 12 specific substances for
which Staley did not have Material Safety Data Sheets (MSDS) and §
1910.1200(h)(3)(iv) by not properly training employees about the meaning
of the HazCom symbols in use on storage tanks containing ethylene oxide,
propylene oxide and sulfuric acid. The Secretary proposed a combined
penalty of $8000. Staley stipulated to the existence of the violations,
but contended that they were not willful. The judge agreed with Staley,
affirmed the violations as serious and assessed a combined penalty of
$6000.

Docket No. 91-0638, Citation 2 alleged a multitude of willful safety
violations. Most of the items were settled before the hearing. Still
before the Commission, however, is a citation alleging 212 separate
items.^(1) <#N_1_> Included are items 1-99 alleging violations of 29
C.F.R. § 1910.23(c)(1)(unguarded platforms), § 1910.219(c)(2)(i)(machine
guarding violations); §§ 1910.303(g)(2)(i), 1910.305(b)(2) and
1910.305(d)(improper or missing electrical equipment guarding). While
some of the items were either vacated by the judge or withdrawn by the
Secretary, those that were affirmed by the judge were found to be
serious, but not willful. Additionally, the Secretary cited Staley for
over a hundred individual willful violations of § 1910.307(b)(electrical
equipment not approved for Class II, Division 2 locations)(items
100-212). Although several of these items were either vacated by the
judge or withdrawn by the Secretary, the judge characterized as willful
those items that he affirmed.

At issue before the Commission are the merits of some and the
characterization of most of the violations affirmed by the judge.



*Docket No. 91-0637*

**

*A. The Asbestos Violations*

1. /Background /

Item 1(a) of willful citation 1 alleges a violation of §
1910.1001(j)(2)(i) ^(2) <#N_2_> for failure to label damaged asbestos
insulation on pipes at eleven locations in the 1, 10, 5, 17, 20, 29, 44
and 118 Buildings.^(3) <#N_3_> Item 1(b) alleges a violation of §
1910.1001(k)(1)^(4) <#N_4_> for failure to clean up debris containing
asbestos at four locations in the 1 Building and one location each in
the 4 and 17 Buildings, where debris from asbestos containing pipe had
not been cleaned up. A combined penalty of $8000 was proposed by the
Secretary. The judge agreed with the Secretary's characterization of the
violations, and assessed the proposed penalty. Staley does not dispute
the existence of the violations, but argues that the judge erred in
finding that the violations were willful. We agree with the judge.

Staley was aware that the Decatur facility had significant quantities of
asbestos in insulation and pipes and it was Decatur policy that, unless
proven otherwise, all insulation installed before 1970 was presumed to
contain asbestos. In May, 1987 a mock OSHA inspection conducted by
safety supervisor J.B. Webb and Staley's director of corporate safety
and risk management, Bob Moore, revealed that pipe lagging probably
contained friable asbestos in the 20, 34, 59, 77, 113, 115 and 118
Buildings. Samples taken at locations around the facility, including
areas in buildings cited here, revealed that the asbestos problem was
extensive.

In response to its asbestos problem, Staley issued a Plant Asbestos
Policy and Procedure Manual. The manual required that danger labels be
affixed to "all raw materials, mixtures, scrap, waste, debris and other
products containing asbestos fibers or to their containers," that "All
external surfaces shall be maintained free of accumulation of asbestos
fibers if their dispersion would be an excessive concentration" and that
employees observing deteriorated or damaged asbestos-containing material
"immediately report their findings to their supervisor."

In January 1989, an asbestos inspection of the 44 Building was conducted
by Bodine Environmental Services. Bodine reported that

Although the projected scope of work does not include a management plan
or risk assessment to determine proper management of the
asbestos-containing materials in your facility, we feel that some sample
areas are so obviously damaged that we should bring them to the
attention of A.E. Staley Company...These materials in their
significantly damaged condition can create asbestos exposures to Staley
employees in these areas. As such, we recommend these
asbestos-containing materials be removed.



Bodine also conducted a survey of the 5 and 10 Buildings in May, 1989.
The survey reported significant exposed asbestos in areas throughout
both buildings. Bodine warned that these areas "should be assessed by
A.E. Staley as to whether they should be removed, repaired or
encapsulated to limit asbestos exposure to building occupants."

In March 1989, NIOSH conducted an inspection of the Decatur facility. In
notes he took during the conference held after the inspection, Bob Moore
observed that:

Ms. McCammon indicated the asbestos identification & abatement program
was 'lagging somewhat.' She said they observed some very frayed
insulation and suggested that the program needed to be moved along.

Dr. Orgel, M.D. (NIOSH Medical Officer) reported that he had reviewed
Staley's asbestos screening procedure and medical files. He found it to
be an appropriate screening program and determined that anyone who had
questionable findings were properly referred for additional testing and
were properly notified (Documented). In his opinion, things were being
done correctly.



In April 1989, shortly after the NIOSH inspection, a safety audit was
conducted by Moore, Bob Trent, head of plant protection, Webb and
Kendall Page, then Staley's associate Safety Engineer. In his audit
report, Page stated that at the 44 Building:

Suspect Asbestos insulation is in extremely poor condition throughout
the area. Bodine Environmental apparently has done a total building
audit in the past few weeks. I believe that asbestos work should be done
immediately. Lagging is in extremely poor condition.



Regarding conditions at the 29 Building, Page noted that



There are many sections of insulation that [contains] suspect asbestos.
It is torn, ripped and literally hanging in many areas. Some tanks are
also covered with this material. At a minimum the suspect material
should be sampled, labeled, and encapsulated.



Referring to the asbestos and housekeeping problems, Page concluded that
"Our potential liability here is very high. Bob Moore and J.B. Webb have
expressed the same concerns as myself."

In June 1990, an audit was conducted at the 118 Building. As with the
other buildings, Page noted in his report:

The insulation in the building should be tested and identified for
asbestos content. All asbestos containing material needs to be
encapsulated and then labeled with an ACM label. Or if it is not
encapsulated, it needs to be removed as soon as possible.



The report went on to specifically identify numerous locations
throughout the building where suspected friable, exposed and damaged
asbestos insulation had to be tested, encapsulated, labeled or removed.

In January 1990, Allied Industrial Workers of America union local
president Dave Watts took Decatur Director of Operations Art Schoepfer
on a tour of the boiler room in the 1 Building to show him the asbestos
problem at that location. Schoepfer agreed that there was a lot of
asbestos. However, he noted that the generation facilities in the
building were being replaced and decided that a determination on what to
do about the asbestos in the building would be made when the new
facilities were on line. Nonetheless, as a result of the asbestos
situation, Staley decided to train employees for small routine
maintenance and asbestos removal, and to use professional contractors
for large removals. In May 1990, Staley sent a number of employees to
Indianapolis for an EPA certified 3-day "Asbestos Workers Course." The
training was designed to inform employees how to remove asbestos in a
safe manner.

In addition, Staley contracted with Bodine Environmental to remove
asbestos at locations throughout the plant. However, Bodine's work was
considered to be inadequate, and asbestos debris was frequently left
lying around. Michael Stewart, who served on the plant safety committee
from 1982-1991, testified that, due to the inadequacy of Bodine's work,
the safety committee requested that the company's contract with Bodine
be terminated. Indeed, several of the asbestos violations involve
locations which were supposed to have been cleaned up by Bodine.^(5) <#N_5_>

2. /Discussion /

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." /Falcon Steel Co./, 16 BNA OSHC 1179,
1181, 1993-95 CCH OSHD ¶ 30,059, p. 41,330 (No. 89-2883,
1993)(consolidated); /A.P. O'Horo Co./, 14 BNA OSHC 2004, 2012, 1991-93
CCH OSHD ¶ 29,223, p. 39,133 (No. 85-0369, 1991). A showing of evil or
malicious intent is not necessary to establish willfulness. /Anderson
Excavating and Wrecking Co./, 17 BNA OSHC 1890, 1891, n.3, 1995-97 CCH
OSHD ¶ 31,228, p. 43,788, n.3 (No. 92-3684, 1997), /aff'd /131 F.3d 1254
(8th Cir. 1997). A willful violation is differentiated from a nonwillful
violation by an employer's heightened awareness of the illegality of the
conduct or conditions and by a state of mind, /i.e./, conscious
disregard or plain indifference for the safety and health of employees.
/General Motors Corp., Electro-Motive Div./, 14 BNA OSHC 2064, 2068,
1991-93 CCH OSHD ¶ 29,240, p. 39,168 (No. 82-630, 1991)(consolidated). A
willful violation is not justified if an employer has made a good faith
effort to comply with a standard or eliminate a hazard, even though the
employer's efforts were not entirely effective or complete. /L.R.
Willson and Sons Inc/., 17 BNA OSHC 2059, 2063, 1997 CCH OSHD ¶ 31,262,
p. 43,890 (No. 94-1546, 1997), /rev'd on other grounds/, 134 F.3d 1235
(4th Cir. 1998); /Williams Enterp., Inc./, 13 BNA OSHC 1249, 1256-57,
1986-87 CCH OSHD ¶ 27,893, p. 36,589 (No. 85-355, 1987). The test of
good faith for these purposes is an objective one; whether the
employer's efforts were objectively reasonable even though they were not
totally effective in eliminating the violative conditions./Caterpillar ,
Inc. v. OSHRC/, 122 F.3d 437, 441-42 (7th Cir. 1997); /General Motors
Corp., Electro-Motive Div./, 14 BNA OSHC at 2068, 1991-93 CCH OSHD at p.
39,168;/Williams Enterp., Inc. /13 BNA OSHC at 1256-57, 1986-87 CCH OSHD
at pp. 36,589.

The record amply demonstrates that Staley was fully aware of the
asbestos problems at its Decatur facility. In most of the cited
locations, the exposed asbestos was not only in plain view, but also
near employee work areas. The record also demonstrates that Staley
published an asbestos policy which, if followed, would have abated the
hazards. Despite this heightened awareness of the condition, Staley's
efforts at abatement were sporadic and incomplete. The NIOSH survey,
safety audits, and employee complaints put Staley on clear notice that
its efforts were lagging. For example, there was no system for removing
asbestos when it was identified. Rather, when notified of a problem,
plant management would merely contact the department heads and seek
their cooperation in getting the matter resolved. Even on a smaller
scale, employees had to repeatedly ask management to remove small
accumulations of asbestos insulation that had fallen off the pipes. When
employees filed a work order in compliance with the company's safety
work order system, they were often told that the work order had not been
received. It was commonplace for a pile of asbestos to lay adjacent to
an operations area for 2-3 weeks before being removed. On one particular
occasion, employees William Bishop and Bill Sweeny were told to clean up
a pile of debris behind the 17 Boiler in the 1 Building. The employees
asked if the material contained asbestos. The supervisor responded that
the material had been sampled and tested negative for asbestos. At the
risk of their jobs, the employees had the material sampled. The results
revealed that, contrary to the supervisor's assurance, the material
contained asbestos.

Nor did Staley attempt to centralize the abatement effort, place
responsibility on Decatur management or mount a comprehensive plant-wide
abatement effort. Bishop testified that after a series of meetings
concerning the asbestos problem, he and other employees concluded that
they were getting the runaround. In early July, 1990, a meeting was held
with Bob Jansen, Executive Vice President of Manufacturing, who told him
that a plan would be developed and promised that the company would
dedicate $2,000,000 to get things started. After months of promises,
Bishop concluded that Jansen's promise was just "words." Finally, on
July 12, 1990, Bishop filed a grievance. The grievance complained of the
"hit and miss abatement" and asked that a comprehensive removal plan be
developed and implemented. Supervisor Ken Toka replied with the
"standard" response that they were "presently working on the asbestos
removal project." Unhappy with the response, Bishop rejected Toka's
answer, which meant that the grievance was automatically referred to the
area manager. The area manager chastised Bishop for writing the
grievance, but promised that several thousand dollars had been committed
to abate the problem and that the matter would be handled after all bids
were in. Moreover, while Staley's asbestos abatement program set forth
procedures which should have abated the violative conditions, the
program was not followed.^(6) <#N_6_>

Staley did undertake affirmative measures to abate the condition. It
conducted asbestos surveys, hired asbestos removal firms, and sent
employees for asbestos training.As noted, however, these efforts were
sporadic and incomplete. For example, after the tour of the 1 Building
by local union president Watts and Director of Operations Schoepfer
revealed a large amount of loose, friable asbestos, no action was taken
because Staley had plans to replace certain of the operations of the 1
Building at another location. The record discloses, however, that
attempts to remedy the situation at the 1 Building had been going on for
five years. During this entire period, Staley put off the repairs on the
ground that it had plans to shut down the building withing a few months.
Nonetheless, employees continued to be exposed to the hazardous
condition. Taken together with the evidence of its failure to take
decisive action to remove asbestos, we cannot say that Staley's
abatement efforts were objectively reasonable.

We therefore find that Staley's pattern of behavior demonstrated plain
indifference to the widespread asbestos hazard at the facility. That
evidence of plain indifference is not negated by the abatement measures
it did take, which pale when compared to the magnitude and duration of
the hazard. In these circumstances, we find that Staley's efforts were
not objectively reasonable, and were not undertaken in good faith. We
find that the violations were willful.

Although the Secretary cited two separate standards, she exercised her
prosecutorial discretion to cite them as a single willful violation for
penalty purposes. /See H.H. Hall Constr. Co/., 10 BNA OSHC 1042, 1046,
1981 CCH OSHD ¶ 25,712, p. 32,056 (No. 76-4765, 1981). The Secretary
proposed a combined penalty of $8000. The judge found the proposal to be
appropriate.^(7) <#N_7_>Staley is a large company with a history of
prior violations. Moreover, with numerous employees exposed to a proven
human carcinogen, we find the gravity of the violation to be high.
Accordingly, we find the $8000 penalty to be appropriate.



*B. The HazCom Violations*/__/

Items 2(a) and 2(b) of Citation 2 alleged that Staley violated the
hazard communication standard at § 1910.1200(h).^(8) <#N_8_>

Item 2(a) alleged that Staley willfully failed to provide Hazard
Communication (HazCom) training with respect to 12 specific
substances^(9) <#N_9_> for which Staley did not have MSDS's. Item 2(b)
alleged that Staley failed to fully train employees about the meaning of
the HazCom symbols in use on the caustic, ethylene oxide, propylene
oxide and sulfuric acid storage tanks. The Secretary proposed a combined
penalty of $8000. Staley stipulated to the existence of the violations,
but contended that the violations were not willful and, accordingly,
that the penalties were excessive. The judge agreed with Staley and
affirmed the items as serious. We disagree and find that the violations
were properly cited as willful.

1. /Background/

The record establishes that Staley had substantial warning of serious
deficiencies in its HazCom program. In November 1988, the Joint Plant
Health and Safety Committee warned Staley of problems with
filteraid.^(10) <#N_10_> In a memo outlining specific health and safety
concerns, the Committee observed that there were bags of filteraid
strewn around and that the material was being tracked all over the 11
Building. The committee noted: "Building personnel need to be trained on
the danger of this product."

During the March 1989 NIOSH survey of the Decatur facility, inspectors
evacuated the starch processing area when ethylene oxide and/or
propylene oxide leaked into the air, making breathing difficult. The
leak set off an outdoor alarm system, which is triggered by
concentrations of 2000 parts ethylene oxide per million units of air. A
respirator was requested for reentry, but none was immediately
available. When a respirator was finally provided, it began to leak
within a few minutes of exposure. Meanwhile, Staley operators continued
to enter the area with no personal protective equipment. Staley received
a report on the results of the survey on May 31, 1989. The NIOSH
investigation into the incident revealed that work practices aimed at
reducing the potential for such incidents were not implemented due to
increased demand for product, lack of operator training, and/or lack of
maintenance. The report concluded that the exposures were "due to
improper work practices, poor management, oversight, and /emphasis of
production over worker safety."/ (emphasis added). The report focused on
potential hazardous exposures to three potential cancer causing agents
in the starch area: ethylene oxide, propylene oxide, and vinyl acetate.
The report concluded that

The potential for overexposures in the starch reaction area emphasizes
the need for an effectively managed personal protective equipment
program in that area specifically, /and throughout the plant. /The fact
that programs for personal protective equipment were not effectively in
place in starch processing /leads us to assume that they may be absent
in other areas as well. /In addition, lack of training and demand for
product seems to have circumvented measures which were specifically
implemented to reduce potential exposure.



(emphasis added).

The safety audit conducted by Staley in 1989 also revealed serious
deficiencies, notably in those buildings cited by the Secretary in this
case. Although the audit showed that the HazCom program was "for the
most part in-place" in the 4, 5, 6, 10, 11 and 29 Buildings, it also
revealed that at the 44 Building, the "department needs to review and
assure all aspects of the Hazard Communication procedure are in-place.
Special attention should be placed on obtaining up-to-date chemical
Manufacturer's Data Sheets." ^(11) <#N_11_> The audit also suggested
that stronger efforts be made to assure that MSDSs and inventories of
chemicals being used are kept up to date. Bob Moore, Staley's director
of corporate safety and risk management, who participated in the 1989
audit, testified that Staley's hazard communication compliance,
respiratory protection and hazardous material control had deteriorated
since 1986 and warned of potential major OSHA penalty liability. Moore
received no reply to his report and was unaware of any effort to correct
the problems.

In 1990, Kendall Page, then Staley's chief assistant engineer, conducted
another safety and health audit. In the 14 Building and 18 Building,
neither of which are mentioned in the citation, Page found several
improperly labeled containers of hazardous material.



2. /Discussion/

We turn first to item 2(a), which alleges a willful failure to provide
training with respect to 12 substances. We find that the record reveals
problems with Staley's HazCom training program that were substantial and
widespread. It received numerous warnings about these deficiencies from
both NIOSH and its own internal audits. Despite its heightened awareness
of these problems, Staley's HazCom program remained grossly deficient.
The inspection disclosed that employees were not properly trained in the
hazards of exposure to twelve substances in fourteen different
buildings. For example, Staley employee Russell testified that although
he was aware that there was an MSDS for nickel catalyst, he was never
formally trained in the hazards and proper use of nickel catalyst, and
became aware of the hazards of the substance by reading the warnings on
the bags and talking to other operators. In addition, Area Manager
Owsley testified that prior to the OSHA inspection, he had no training
in hazard recognition.

Staley's failure to act on the widespread problem with filteraid
establishes that the company was indifferent to its obligations under
the HazCom standards. As noted, problems with filteraid were highlighted
in 1988 by the Joint Plant Health and Safety Committee's warning that
filteraid was strewn around the 11 Building and that employees had to be
trained on the danger of the product. Similarly, Page's 1988 report
specifically complained of the large quantities of filteraid lying about
the 11 Building. Indeed, the record is replete with warnings about the
danger of filteraid and problems the company was having handling the
product. Despite these warnings, these same conditions continued to
exist at the time of the OSHA inspection. Indeed, Staley employee
Marquis testified that, in the 10 Building filteraid would become
airborne after fifty pound bags of filteraid were dumped into
chutes.^(12) <#N_12_> At times employees would dump the material on the
floor. According to the testimony, so much of the filteraid would
accumulate, that they would carry it out in wheel barrels. Marquis
testified that the material would get into his nose, throat, mouth, and
irritate his eyes. He also testified that during the 25 years he worked
with the material, he was never told the hazards of the material.^(13)
<#N_13_> Marquis was not advised of the HazCom standard, didn't know
what an MSDS was, and was never advised that there was a HazCom program
in his work area. Indeed, until the OSHA inspection, Staley did not even
provide dust masks to employees. Given Staley's heightened awareness of
the filteraid problem, we find that its failure to adequately train its
employees in the hazards and proper handling of filteraid constitutes a
willful violation of § 1910.1200(h).

We also find violation 2(b) to be willful. The incident that occurred
during the 1989 NIOSH inspection, when employees entered the building
even after the alarm sounded a warning that there was an ethylene oxide
leak, and the NIOSH report on that incident, put Staley squarely on
notice that its employees were woefully ignorant about the hazards
associated with ethylene oxide and propylene oxide.^(14) <#N_14_> The
severity of the incident and the sternness of the warning establishes
that Staley had a heightened awareness that its employees were not
adequately trained. So viewed, Staley's failure to ensure by the time of
the inspection that employees were fully trained in the meaning of the
HazCom symbols for ethylene oxide and propylene oxide can be explained
only by plain indifference to employee safety.

Again, although the Secretary cited two separate standards, she
exercised her prosecutorial discretion to cite them as a single willful
violation for penalty purposes. /See H.H. Hall Constr. Co/., 10 BNA OSHC
at 1046, 1981 CCH OSHD at p. 32,056. The Secretary proposed a combined
penalty of $8000 for the violations. We find that amount to properly
reflect the potential for life-threatening illness posed by exposure to
the substances, the duration of the violations, and the large number of
employees exposed.



*Docket No. 91-0638*

In this docket, the Secretary cited Staley for numerous safety
violations. While most of the items were settled by the parties, there
remain before the Commission the merits or characterization of most of
the items in citation 2, which alleged 212 individual willful
violations. These violations fall into four basic categories. Items 1-22
allegedviolations of the platform guarding standard at 29 C.F.R. §
1910.23(c)(1). Items 23-60^(15) <#N_15_> alleged violations of the
machine guarding standard at § 1910.219(c)(2)(i). Items 61-99^(16)
<#N_16_> alleged violations of the electrical standards at
§§1910.303(g)(2)(i),^(17) <#N_17_> 1910.305(b)(2) and 1910.305(d)^(18)
<#N_18_>(improper or missing electrical equipment guarding). Finally,
items 100-212^(19) <#N_19_> allege that Staley violated §
1910.307(b)^(20) <#N_20_> by using electrical equipment not approved for
Class II, Division 2 locations.

For items 1-99, Staley challenges the existence of only items 7 and 53.
As to items 100-212, Staley contends that 26 items involved areas that
were not Class II Div. 2 locations. However, both the Secretary and
Staley challenge the judge's classification of all the affirmed
items.^(21) <#N_21_> We turn first to item 7.



*A*. *Did the judge err by not holding that item 7 was duplicative of
item 8?*//

Item 7 of citation 2 alleged a violation of § 1910.23(c)(1)^(22)
<#N_22_> on the grounds that Staley failed to adequately guard the
number 26 packing station in 20 Building. Item 8 alleged a similar
violation at the Red and Blue packing stations in the 20 Building.
Staley stipulated that the stations were not properly guarded and, at
the hearing, stipulated that there was employee access to the violative
conditions. However, in its proposed findings of fact, Staley stated
that the items were duplicative on the grounds that the #26 station
cited in item 7 is the same location as the Red packing station cited in
item 8. The judge did not consider this when he affirmed items 7 and 8
as separate violations. Because the record is unclear concerning the
location of the two items, we vacate item 7.

The Secretary acknowledges that the compliance officer was confused
about the location of these workstations. The compliance officer
testified that items 7 and 8 were both depicted on a photographic
exhibit. He testified that item 7 included the area by the material on
the skids in the center of the photo with the staircase going up to the
right-hand side of the platform. Later, however, the compliance officer
seemed to locate the packing station at another location. He also
testified that the various stations were referred to by several names by
the people who worked at the plant. For example, the Red packing station
was also known as Packing Station No. 55.

Jeffrey Kunzeman, a Staley employee, attempted to clarify the matter.
Kunzeman testified that the platform depicted in the photograph has two
stations on it, designated Red and Blue, which are also referred to as
#55 and #56. Looking at a diagram of the floor he identified these
locations cited in item 8 as the stations depicted on the left-center of
the diagram. He testified that station 26 (which is explicitly referred
to in item 7) is the packing platform, also known as the Dextrin Packing
Platform, on the right-center part of the diagram, but that it is not
shown on the photograph. Therefore, the photograph does not show the
conditions cited in item 7.

The compliance officer's confusion, combined with the unavailability of
a photograph depicting item 7, makes it impossible for us to discern
which platform the compliance officer was referring to and, /a
fortiori/, whether the platform cited in item 7 was improperly guarded.
Accordingly, we find that the Secretary failed to establish, by a
preponderance of the evidence, that the platform cited in item 7 was
improperly guarded and the item is vacated.













***B*. *Did the judge err by finding employee exposure to the shaft in
item 53*/?/

Item 53 alleges that Staley violated § 1910.219(c)(2)(i) ^(23)
<#N_23_>because:

At Building #75 on the 5th floor, employees were exposed to an unguarded
rotating shaft and coupling on the motor for the 519 elevator conveyor
outside catwalk area.



The judge affirmed the item on the grounds that employees performing
maintenance in the area could be exposed to the unguarded shaft. The
issue before the Commission is whether any employees were exposed to the
hazard.

In order to meet her burden of establishing the exposure element of her
/prima facie/ case under the Act, the Secretary must show that it is
reasonably predictable, either by inadvertence or otherwise, that
employees have been, are, or will be in the zone of danger. /Fabricated
Metals/, 18 BNA OSHC 1072, 1074, 1998 CCH OSHD ¶ 31,463, p. 44,506 (No.
93-1853, 1997). The inquiry is not into whether exposure is
theoretically possible, but whether it is reasonably predictable. /Id./

The shaft is part of the mechanism used to raise the catwalk located in
the area, which is a loading station. The compliance officer testified
that employees would be in the area at least once a day during their
shift to run the motor, and raise and lower the platform. During this
procedure, they would be below the platform, approximately 8-10 feet
away. The compliance officer also noted that employees "might" have
cleaning responsibilities in the area as well. Staley supervisor, Ronald
Young, testified that the shaft "only runs when we're getting ready to
load a car or a car has just been completed." Young also testified that
employees would not be on the platform when the shaft was running, but
that they would be near the shaft when cleaning or performing maintenance.

We find that the Secretary failed to establish exposure. Testimony cited
by the judge does not support a finding that it is predictable that
employees would be in the zone of danger. To the contrary, the testimony
of employee Young established that the operator activated the shaft by
raising or lowering the catwalk from the next level down and had no need
to be on the platform when it was operating. Employees would only be on
the platform to clean and maintain the area and mechanism. There is no
evidence that the shaft would be rotating during maintenance. A
photographic exhibit in evidence is not conclusive.^(24) <#N_24_>Absent
evidence that employees were exposed to the unguarded shaft, the item is
vacated.

*C*.//*Items 1-99*//

1. /Background/

//The Secretary argues that the judge improperly reduced the
characterization of each of the affirmed platform, electrical, and
machine guarding violations in Citation 2 from willful to serious.
Staley, on the other hand, while agreeing that the violations were not
willful, specifically challenges the judge's characterization of 15 of
these items as serious. In support of the allegation that certain
violations were willful, the Secretary relies on evidence relevant to
her claim that Staley either voluntarily disregarded the requirements of
the Act or was plainly indifferent to employee safety. /Pepperidge Farm,
Inc. /17 BNA OSHC 1993, 1998, 1995-97 CCH OSHD ¶ 31,301, p. 44,009 (No.
89-0265, 1997); /Valdak Corp., /17 BNA OSHC 1135, 1136, 1993-95 CCH OSHD
¶ 30,759, p. 42,740 (No. 93-239, 1995), /aff'd, /73 F.3d 1466 (8th Cir.
1996).

The Secretary's evidence of willfulness can be broken down into five
categories, each of which will be examined individually:

1. Staley's knowledge of the requirements of the Act;

2. Staley's alleged refusal to take appropriate action in response to
its April 1989 audit of the Decatur facility;

3. Staley's alleged pattern and practice of placing production goals
ahead of concern for employee safety;

4. Staley's alleged pattern and practice of engaging in a "cost benefit
analysis," which weighed the costs of compliance against likely amounts
to be assessed in penalties should OSHA issue citations; and

5. Staley's alleged failure to develop an adequate safety program, and
overall lax training in and enforcement of safety codes, policies and
procedures.

/Staley's Knowledge of the Requirements of the Act./

The evidence establishes that Staley was aware of the requirements of
the Act. At the start of the hearing, Staley stipulated that its
Corporate Safety Office was familiar with all of the cited regulations.
Bob Moore, Staley's Director of Corporate Safety and Risk Management,
testified that he was familiar with OSHA regulations, subscribed to
Bureau of National Affairs (BNA) Reports and read the Federal Register
when it published something of significance. Ken Page, who was Staley's
Safety Engineer at the time of the citations, testified that he had
responsibility for compliance with OSHA regulations and to that end,
conducted wall-to-wall audits of the Decatur facility. Finally, Staley's
Safety Code Book states that "[t]he safety policies and procedures
contained in this Safety Code Book and Decatur Plant Safety Manual meet
the requirements of the Occupational Health and Safety Act of 1970 and
other federal and state regulatory agencies." The code covers such areas
relevant to this proceeding as asbestos, toxic substance identification
and training, machine guarding, and electrical safety.



///Staley's Reaction to its 1989 Audit/

As noted earlier, in March 1989 the National Institute for Occupational
Safety and Health conducted a survey of health hazards at the Decatur
facility. As a result of that survey, and in response to employee
complaints, Staley, in April 1989, conducted a safety audit of 7 of its
24 departments at the Decatur facility. Leading the audit were Moore,
J.B. Webb (Supervisor of Safety), Ken Page (Safety Engineer), and Bob
Trent (head of plant protection) The focus of the audit involved hazard
communications, respiratory protection, and potential employee exposure
to various hazardous substances (including silica and asbestos) at the
11, 29, 111, and 116 Buildings.

Following the audit, Page submitted three handwritten memos to Lynn
Elder, Staley's Corporate Director of Environmental Sciences and Safety.
In those memos, Page found many weaknesses in Staley's HazCom and
respiratory protection programs and in employee exposure to hazardous
substances. Additionally, Page made the following observations regarding
general safety conditions at the audited areas:

In addition to the above mentioned items there are literally hundreds of
safety violations through out this area. In summary 4 & 6 buildings has
some problems that need immediate attention.

* * *

This audit did not address specific safety violations, but this building
[29] is full of electrical problems, safety shower, eye wash, and
guarding problems. A complete top to bottom safety inspection should be
done as soon as possible. There are many OSHA citations present.

* * *

Lynn, I have never seen this building [44] in such bad condition. The
building has literally gone to hell in a hand-basket. As noted in other
buildings, there are literally hundreds of safety type violations
through out the area.



At the hearing, Page testified that the safety violations he was
referring to included electrical boxes, panels and switches without
covers, exposed live wires, and uncovered couplings on pumps and other
motors. Page testified that Elder called him into his office and told
Page that he was upset at the manner in which the memoranda was written.
According to Page, Elder told him that the report could not be published
and that they could either tear up the memos or send them to the legal
department. In subsequent conversations, Elder told Page that the legal
department would "crucify" them for the information in the memos and
that he could not send them to the legal department without stamping
them "privileged and confidential." Elder proposed that if Page would
tear up the reports he would then take the matter up with Bob Jansen,
the Corporate VP. Elder also gave Page the option of presenting his
information verbally to the Decatur staff during a meeting. Nonetheless,
Page made additional copies of his memos and distributed them to Moore,
Bob Trent, and J.B. Webb because he "had a gut feeling that this was
going to come back and probably haunt myself and the Decatur Facility."
Page further testified that, approximately a week later, Elder told him
that he had spoken to Jansen who indicated that he was aware of the
problems in the plant, but that they had to get the networking
project^(25) <#N_25_> done before they tried to correct some of the
problems at the plant.

Staley contends that Elder was not ordering Page to destroy the notes,
and that the conversation was merely one colleague making a suggestion
to another. Staley also contends that Elder "suggested" that the memos
be destroyed so that they could be written to be more factual and less
general. Staley further points out that Elder was the /corporate/
Director of Environmental Sciences and Safety and that, as such, he had
no managerial authority over the managers of the Decatur facility.

/Production Goals v. Employee Safety/

It is the Secretary's position that Staley put profits and production
goals ahead of employee safety and health. The Secretary contends that
Staley's placement of profits ahead of safety establishes that it
recklessly disregarded its safety responsibilities and, therefore,
willfully disregarded the safety of its employees. By all accounts,
Staley supervisors were preoccupied with the networking project. The
Secretary alleges that this preoccupation was at the expense of employee
safety.

In May 1989, NIOSH wrote a letter to Webb summarizing a health hazard
evaluation conducted at Decatur. The letter noted that:

. . .we feel that there is significant potential for chemical
overexposures in the starch reaction area, and possibly throughout the
starch stream. This appears to be due to improper work practices, poor
management, oversight, and emphasis of production over worker safety.



On January 4, 1990, Staley officials, including Webb, met with union
members to discuss, among other things, a hexane spill that occurred the
day before. Webb's notes of that meeting reveal such comments as:

Health and safety taking a back seat to production. (Watts)

* * *

Safety taking a back seat to production area committees must get back in
control or someone's going to get seriously injured or killed. (G. Sharp)

* * *

Monthly health and safety committee meetings are not taking place, don't
have time, etc. (J. Beals)



On September 12, 1990, the joint plant safety committee held a meeting
with Larry Cunningham, the president and CEO of Staley. At that meeting,
the union presented Cunningham with a memo, outlining their safety
concerns and demands. Included in the memo were such comments as:

This company is so production and profit driven that all other systems
that support the grind are falling down. The drive to meet production
goals of '200,000' PLUS bushels per day has put people needs and safety
at a very low priority.



We have all become pawns and expendable in the multi-corporate chess
game of tremendous profit.



Testimony that Staley put profits ahead of safety came from a number of
witnesses. Compliance Officer Denton testified that employees told him
that, because of an increase in their workload, they no longer had time
for housekeeping or to keep up with dusty conditions. Moreover, in the
majority of cases, safety committees were no longer meeting, and those
that were meeting were disgusted with the fact that conditions over
which they expressed concern weren't getting abated. Ken Carl, an Staley
employee for 21 years, testified that because supervisors hurried them,
the electricians left bolts off the electrical boxes. However, Carl did
not clarify whether electricians were specifically instructed to leave
bolts off boxes or whether that was a shortcut taken of their own
volition in order to save time. Former Staley employee Gene Marquis
testified that safety issues were often put on the back burner because
they were upgrading production. Marquis observed that if things did not
have to be shut down to effect a repair, it would get done. Otherwise,
they wouldn't shut it down unless the condition was really serious.

Page testified that, in his opinion, there was a cost analysis involved
in company decisions to take safety precautions, and that the company
would take the least expensive course, regardless of its effect on
employee safety. According to Page, the company was especially
preoccupied with the networking project at the expense of employee
safety during the 12-18 months prior to the inspection. Page also
testified that, in 1988, he attempted to perform a safety audit of the
Decatur facility, but was turned down by Director of Operations
Schoepfer on the ground that there were too many other things to do.
Schoepfer did not deny refusing Page permission to conduct the audit,
but explained that, at the time of the request, the networking project
was going on and, as a result, there was a lot of construction work and
contractors at the site. Given this level of disruptive activity,
Schoepfer testified that an audit would have been of little value.

Nonetheless, in 1989, the Decatur facility completed one million man
hours without a lost time accident.

/Cost-Benefit v. Safety/

According to the Secretary, Staley compared the cost of compliance
against its potential OSHA liability before undertaking abatement of
safety and health hazards. This analysis, the Secretary contends, is
further evidence of Staley's overall reckless disregard of its health
and safety obligations and bears directly on Staley's state of mind when
the violations occurred and on whether Staley had a reasonable, good
faith belief that it was complying with its OSHA obligations. /Monfort
of Colorado Inc./, 14 BNA OSHC 2055, 2062, 1991-93 CCH OSHD ¶ 29,246, p.
39,185 (No. 87-1220, 1991)

Page testified that, during the OSHA inspection, he had a conversation
with vice-president of operations Jansen. When Page opined that the
inspection was not going well, Jansen was unconcerned and stated that
"we would let OSHA do the job of finding out what

was wrong . We would have to pay a few thousand dollars in fines and
everything would go away." Page also testified that, during one of his
safety audits, a plant manager at an unidentified Staley facility asked
him "if we don't do these, how much will the OSHA citation be?" It was
Page's impression that the cost of compliance "seemed" determinative
when management considered whether to abate a hazard.

/Alleged Laxity of Safety Programs and Safety Training./

Given the size of the Decatur facility, Staley set up a fairly elaborate
web of safety committees with varying authority and reporting
requirements. The Union-Management Joint Plant Safety Committee is
comprised of a union-designated chairman, two union-designated
representatives, Webb (the Plant safety supervisor) and one other
management-designated representative. The committee would meet once a
month to review safety issues, discuss safety problems and determine
what needed to be done. They would also discuss accidents that occurred
and walk around the department to observe conditions.

Responsibilities of this committee included (1) preparing and
distributing the safety Code book to employees; (2) developing new
safety programs as needed; (3) responding to safety complaints; (4)
reviewing new OSHA standards and maintaining the safety manuals in
conformance with those standards; (5) monitoring the conduct of building
safety committees; (6) auditing compliance with safety programs and
reviewing the results of their meetings; and (7) reviewing safety
observations, safety grievances, and safety work orders. Although the
Committee would recommend action necessary to correct unsafe conditions,
it did not have authority to approve expenditures or write work orders,
or direct the workforce to make the necessary corrections.

In addition to the Plant Committee were the Building Safety Committees,
comprised of both union-designated and management representatives. The
purpose of these committees was to improve communications, and to get
employees involved in the safety effort. The committees were supposed to
meet monthly and keep minutes, but approximately 50% of the committees
failed to do so. The situation improved after a memo was circulated
directing inactive committees to hold their monthly meetings. However,
the committees failed to take walk-around tours of the buildings as
required by company policy.

According to the Staley Safety Code Book, an employee finding an unsafe
condition submits, in triplicate, a written observation form. One copy
of the form goes to the supervisor, one copy goes to the building safety
committee, and the third copy goes to the plant safety committee. If
accepted by the supervisor, a safety work order is issued for correction
of the condition on a priority basis. If the supervisor fails to act,
the employee may invoke the Union grievance procedure which is enforced
by third-party arbitration. In 1989 and 1990, employees filed
approximately 25 safety related grievances.

Plant coordinator Schmidt testified that work orders resulting from
safety observations were entered into a computer for tracking. Each
maintenance supervisor was responsible for tracking the safety work
orders relevant to his area. Shift coordinator Young testified that he
never rejected a safety observation. However, he also stated that there
were times when, due to the nature of the repair necessary, backlogs on
responding to the observations would occur. On the other hand, plant
safety committee member Michael Stewart testified that 1988-89 was a
period when a lot of grievances were filed, and that when he set up a
meeting, management often failed to show up.

Staley employee Marquis testified that a number of safety observations
got lost and were found in a supervisor's desk, while others wouldn't
receive action for months. As a result, employees got frustrated trying
to get safety matters fixed and stopped pursuing repair.



///2. Discussion/

/a. / /Willfulness/

//The judge found that this general evidence did not establish
willfulness either individually or collectively for the affirmed
electrical, machine and platform guarding violations in items 1-99. We
agree. As discussed earlier, one way in which the Secretary may
establish a willful violation is by demonstrating that the employer had
such a disregard for employee safety or the requirements of the law
generally that it could be inferred that if the employer had known of
the conduct or condition, it would not have cared that it was in
violation of the Act. /Johnson Controls/, 16 BNA OSHC 1048, 1051,
1993-95 CCH OSHD ¶ 30,018, p. 41,142 (No. 90-2179, 1993);/Williams
Enterprises, Inc./, 13 BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD ¶
27,893, p. 36,589 (No. 85-355, 1987). Although the evidence demonstrates
serious weaknesses in Staley's approach to safety, the record, with
respect to these items, is insufficient to support an inference that,
even if it knew of a particular violation, it would not care that it was
in violation of the Act.^(26) <#N_26_>

Similarly, the evidence fails to establish that the numerous safety
violations set forth in items 1-99 were allowed to exist due to any
"cost-benefit" analysis or by a decision by management that the
abatement of these violations would slow production. We find that the
entire line of testimony alleging that Staley weighed abatement against
potential OSHA liability is of little probative value. First, Jansen's
alleged statement to Page, that Staley would let OSHA find out what was
wrong and pay the penalty, must be viewed in context. It was made during
the OSHA inspection. Jansen might have been just stating the obvious;
with OSHA in the facility, it was too late to undertake a program to
discover violations and avoid citation. OSHA would discover what was
wrong and issue its citations and penalties. Second, Page's impression
that management "seemed" to consider the cost of abatement is indefinite
and inconclusive. Moreover, his recollection regarding an unnamed
manager's query about the size of the penalties if hazards were not
abated must be viewed as the unsubstantiated hearsay it is. Fed. R.
Evid. 801. It was introduced to establish the truth of the matter
asserted; that Staley measured abatement against the potential OSHA
penalty. Yet, not only is the declarant unavailable for
cross-examination, he/she is not even identified. Therefore, this entire
line of testimony is of little, if any, probative value.^(27) <#N_27_>

Staley also points out that the overwhelming number of electrical
devices, machines and platforms were in compliance with the applicable
OSHA standards. For example, the violations occurred in 17 of the 120
buildings inspected where there were tens of thousands of electrical
panels and over 1900 miles of conduit throughout the plant which met
OSHA standards. Similarly, plant wide, approximately 5500 motors had
standard shaft and coupling guards in place at the time of the
inspection; and out of approximately eight miles of standard guardrails
throughout the plant, the missing sections of guardrail totaled less
than 60 feet in length. While the Commission has never adopted a
percentage of compliance test for determining whether a violation is
willful, and does not do so here, it has taken notice of the small
number of prior violations in relationship to the total volume of work
as relevant to respondent's state of mind. /Beta Constr. Co./, 16 BNA
OSHC 1435, 1445, 1993-95 CCH OSHD ¶ 30,239, p. 41,653 (No. 91-102, 1993)
, /aff'd without published opinion/, 52 F.3d 1122 (D.C. Cir. 1995);
/J.A. Jones Constr. Co./, 15 BNA OSHC 2201, 2211, 1993 CCH OSHD ¶
29,964, pp. 41,029-30 (No. 87-2059, 1993).

Accordingly, we find that, standing alone, the "general evidence" does
not demonstrate either an overt company policy not to abate those
violations or a pattern or practice of not abating these violations when
discovered sufficient to support a general determination of willfulness
for each of the items. /See McKie Ford v. Secretary/, 191 F.3d 853, 857
(8th Cir. 1999)/; Georgia Electric Co. v. Marshall/, 595 F.2d 309, 320
(5th Cir. 1979). We note, however, that this "general evidence" is
relevant when determining Staley's good faith toward employee safety
and, therefore, the penalty for each violation.

We are unwilling to depart from Commission precedent to find a whole
series of disparate violations willful, based on general evidence, where
the violations are not part of a pattern, practice, or course of
conduct. However, that does not preclude a determination that any
individual item was willful in nature. Where the evidence establishes
that Staley had a heightened awareness of the illegality of the conduct
or condition, yet failed to take corrective action, a willful
characterization of that item is appropriate. /General Motors Corp.,
Electro-Motive Div./, 14 BNA OSHC at 2068, 1991-93 CCH OSHD at p.
39,168.^(28) <#N_28_>

On this basis, the evidence with respect to specific items does
establish that several of the violations were willful.

_Item 4_- The evidence established that the edge of a platform on the
second floor of the 11 Building was unguarded. The condition existed
approximately a year before the inspection and was photographed by Page
during his 1989 audit. Therefore, Staley had a heightened awareness of
the violation. Its failure to correct the violation was willful.

_Item 5_-This platform, on a walkway on the second floor of the 18
Building was unguarded from the time the walkway was constructed.
Moreover, the condition was mentioned in the 1990 audit, establishing
that Staley had a heightened awareness of the violation. Its failure to
correct the condition was, therefore, willful.

_Item 10_-At the 44 Building, at the truck loadout area, a work platform
eleven feet above the ground was guarded with a chain instead of a
standard guardrail. Staley stipulated that supervisors were aware of the
condition, establishing heightened awareness of the violation. The
failure to abate the hazard was willful.

_Item 12_-On the roof of the 75 Building, employees worked on a platform
in the storage bin area. The platform was 5 feet, 1 inch above the floor
and had an unguarded edge. Employees working on the platform would bang
on a tank with a 10-15 pound sledge hammer to free up material in the
bin. Building operator Kenneth Carl testified that when employees swung
the hammer, they were in danger of losing their balance in the direction
of the unguarded edge. Carl further testified that, while he did not
file a written complaint, he repeatedly told at least three foremen
about the hazard. When Carl told his foremen of his reluctance to swing
the sledge hammer due to the hazard, he was advised that "the job has to
be done." According to Carl, this condition persisted for 2-3 years.
Carl's testimony establishes that Staley had a heightened awareness of
the hazard, yet failed to abate the condition. Its failure to abate this
hazard was, therefore, willful.

_Item 20_-At the 90A Building, on the second level, a material receiving
area, 15 feet above the ground, was protected only with a 36 inch high
top chain extending across an access opening 5.5 feet wide. The
condition existed for approximately 6 months before the inspection.
Moreover, employees specifically complained to their foreman about the
inadequacy of the chain. Therefore, Staley had a heightened awareness of
the condition and the hazard it presented to its employees and the
violation was properly cited as willful.

_Item 54_-In the 90A Building, on the first floor south of the control
room, a 1 inch diameter horizontal rotating shaft and coupling on the
motor leading to the Heil filter pump, located a foot from the floor,
was not enclosed completely by a stationary casing. Two operators were
exposed to the hazard of the unguarded shaft for approximately a half
hour each day. The condition existed for approximately 6 months before
the inspection and had been the subject of employee complaints to the
foreman. We find that Staley had a heightened awareness of the violative
condition and, therefore, that the violation was willful.

/b/. /Seriousness/

A violation is serious if there is a substantial probability that death
or serious physical harm could result. This does not mean that the
occurrence of an accident must be a substantially probable result of the
violative condition but, rather, that a serious injury is the likely
result if an accident does occur. /ConAgra Flour Milling Co./, 15 BNA
OSHC 1817, 1824, 1991-93 CCH OSHD ¶ 29,808, p. 40,594 (No. 88-2572, 1992).

Staley argues that the judge's blanket finding that the items were
serious ignores the evidence in 15 of the items where the rotating
shafts were short, or the machines were partially guarded or guarded by
location.

The Secretary counters that Staley's arguments goes to the likelihood of
an accident. The compliance officer testified that the shafts rotated at
a speed of 1500-2000 rpm. Thus, the Secretary points out, regardless of
how unlikely it was that clothing could get caught in a shaft, had that
occurred, the clothing would tighten around the employee's body, draw it
toward the shaft and cause serious injuries such as lacerations, broken
bones, or even death.^(29) <#N_29_>

The judge lumped all 36 machine guarding violations together and
determined that they were serious without making any distinctions among
the machines. However, as Staley points out, the machines and the
hazards they present vary greatly. Staley challenges the
characterization of the following 15 items. We will consider these items
individually.

_Items 24, 28, 32, 39, 40, and 58_

In each of these items, Staley argues that the rotating shafts were too
short to present a hazard of entanglement. The exposed portions of these
shafts ranged in size from 4 to 7.5 inches in length. In each instance
employees' work duties brought them close to the unguarded shafts and
couplings. Though short, the shaft and coupling were exposed and could
have caught hair or clothing. The length of the exposed shaft is
relevant to the likelihood of entanglement, and therefore, the gravity
of the violation, but the evidence shows that, should an accident occur,
the consequences would be death or serious physical harm.

_Item 33_

On the roof area of the 9 Building, the horizontal rotating shaft and
coupling for the motor which drives the 305 conveyor was located five
feet above the ground and was not enclosed completely by a stationary
casing. The area is visited occasionally by the lead operator and/or
mechanics to assess malfunctions. Supervisory personnel were in the area
periodically to observe operations. The condition existed for one year.
There was no evidence regarding the size of the shaft and coupling.
Nonetheless, the evidence establishes that the shaft and coupling were
partially unguarded and, therefore, an employee could have gotten
entangled.

_Item 34_

On the fourth floor of the 10 Building, a motor had a horizontal shaft
and coupling that was not protected by a guard. There is no evidence to
establish the size of the shaft. The motor was behind a grating, less
than seven feet above the floor. However, the compliance officer
testified that his conversation with employees suggested that they would
access the area on a daily basis, to clean around the shaft and
coupling. Maintenance personnel also serviced the motor. Supervisors
would be in the area about once a week and the condition was in plain
view. The condition existed for about a year.

Staley contends that because the shaft and coupling were located beneath
a grating, employees were protected and could not get entangled. While
the evidence demonstrates that the violation was of low gravity, we find
that the Secretary established that it was serious. Although partially
protected by a grating, the evidence establishes that employees cleaning
around the motor were exposed to the shaft and coupling and could get
entangled and suffer serious physical harm.

_Item 35_

On the fourth floor of the 10 Building, a shaft and coupling was not
protected by a stationary guard. There was no evidence to establish the
size of the shaft. As with item 34, it was located underneath a grating
and less than 7 feet above the floor. The condition had been in
existence for about a year.

Again, Staley contends that because the shaft and coupling were located
beneath a grating, employees were protected and could not get entangled.
As with the previous item, however, the evidence establishes that
maintenance people would be exposed to the rapidly rotating shaft. We
therefore agree with the judge that this item was serious.

_Item 36_

On the west side of the 18 Building, an 8 inch long, 2 inch diameter
horizontal rotating shaft and coupling on the drive motor for the corn
oil mill dryer was not completely enclosed by a stationary casing. The
motor was 4 feet 8 inches from the floor and located near a walkway. An
operator would pass by the motor twice per shift and supervisory
personnel were in the area at least once a week. The motor does not
operate continuously, but is turned off and on periodically as needed.
The condition was in plain view and existed for six months.

Staley contends that this violation was not serious because it was
partially guarded by its position. We find that the evidence is to the
contrary. The evidence establishes that the motor was near a walkway and
that the shaft was partially guarded on the bottom, but not at the top.
Thus, it is reasonably predictable that an employee could get a piece of
clothing entangled in the shaft, which could pull him or her into the
machine with resultant serious injuries.

_Item 38_

On the fourth floor of the 26 Building, a 4 inch long, 1 inch diameter
horizontal rotating shaft and coupling at the finished product collector
motor was not enclosed completely by a stationary casing. The casing was
lying on the floor. However, the shaft was partially protected by the
upper framework of the motor. The casing had been off the motor for
about a month. The motor was less than 7 feet from the floor. The motor
was in plain view and supervisory personnel were in the area at least
once a week. Maintenance and cleaning people also were in the area and a
flash operator was exposed to the motor about 15 minutes a day.

Staley disputes the serious characterization of this item on the grounds
that the shaft was short and partially guarded. The evidence shows that
the partial guarding was not substantial enough to prevent an employee
from getting close enough to the shaft to get entangled. If an employee
were to get entangled, the result could have been death or serious
physical harm. Therefore, the violation was properly characterized by
the judge as serious.

_Item 51_

__Outside of the 75 Building, near the railcar mover area, a 24 inch
long, 2 inch diameter horizontal rotating shaft and coupling on the
motor was not enclosed by a stationary casing. The motor was 27 inches
from the floor. The pump was visible and supervisory personnel were in
the area to observe operations at least once a week. The condition
existed for approximately two weeks prior to the inspection.

While the compliance officer testified that all the other shafts in
question spun at a rate of 1500 to 2000 rpm, he testified that the shaft
involved in this item spun at a rate of only 3.5 rpm. While the evidence
shows that employees were exposed to the condition, the rotation of this
shaft was sufficiently slow that any injuries resulting from
entanglement would be minor. Accordingly, we find this item to be
nonserious.

_Item 52_

In the 75 Building, the 8 inch long and 1 inch diameter horizontal shaft
and coupling on a motor at the west feed bin, located 16 inches above
the floor, was not enclosed by a stationary casing. Employees were in
the area daily, and would be exposed for about a half hour a day.
However, a small raised platform between the machine and the walkway
partially guarded the shaft and coupling. There was no partial
protection on the other side where there was no walkway. The condition
was in plain view and existed for six months prior to the inspection.

Staley argues that the shaft was recessed and, accordingly, that an
employee could not get his or her clothing entangled. Although the
evidence indicates that the shaft was not easily accessible, it was not
inaccessible. This made the likelihood of an accident and the gravity of
the violation low, but any employee who became entangled in the shaft
could suffer serious physical harm.

_Item 56_

In the 11 Building, on the second floor of the Zwag dryer area, a 6 inch
long, 1 inch diameter horizontal rotating shaft and coupling on the P211
pump, located 9 inches from the floor, was not completely enclosed by a
stationary casing. Employees would be exposed on a daily basis,
primarily during clean-up duty which would take them in close proximity
to the hazard. However, access to the pump was partially obstructed by a
retaining wall. The condition existed for six months and was in plain view.

Staley argues that the item is not serious because of the shortness of
the shaft and the partial obstruction of the shaft by the retaining
wall. While the shortness of the shaft and the partial obstruction of
access by the retaining wall goes to the likelihood of an accident and,
therefore, the gravity of the violation, an employee becoming entangled
could suffer serious injury. Therefore, we find that the item was serious.

_Item 59_

In the 5 Building, on the first floor, a 13 inch long, 1 inch diameter
horizontal shaft and coupling on a motor next to the steam condensate
pump, was not completely enclosed by a stationary casing. The casing was
not properly positioned over the shaft and coupling. The compliance
officer testified that the guard might have been shaken loose during
operations. The pump was located 21 inches from the floor. Employees
would be exposed when accessing valves and other equipment. Moreover,
there are switches that turn on the motor, and employees would be in the
area for cleaning and maintenance. The condition was in plain view and
existed for a month.

Staley contends that this item was not serious because the guard that
had been on the shaft was askew. Again, however, while that goes to the
likelihood of an accident, it does not change the fact that had an
employee become entangled in this rapidly rotating shaft, he or she
could have suffered serious physical harm. Accordingly, the item was
properly characterized as serious.

c. /Penalties/

On November 5, 1990, section 17 of the Act, 29 U.S.C. § 666, was amended
to increase the maximum penalty for a willful violation from $10,000 to
$70,000 and for a serious violation from $1000 to $7000. The judge
applied the amended penalty structure and assessed penalties of $2100
for serious items 1-12 and $1750 for items 13 and 15-22. For the serious
machine guarding violations (items 23, 24, 26-60^(30) <#N_30_>) the
judge assessed penalties of $1750 for each affirmed item. Finally, a
penalty of $2450 was assessed by the judge for each of the serious
electrical violations he affirmed (items 61-65, 68, 71, 72, 74-78,
80-83, 87-92, 94-98). We find that the judge erred by applying this
amended penalty structure to the violations in this case. The Secretary
stated that the amended penalty limits were to apply to all inspections
initiated on or after March 1, 1991 and were to be used to calculate
penalties for all violations determined to exist on or after November 5,
1990. OSHA Instruction CPL 2.45 B CH-2 (March 1, 1991). The Commission
has applied the amended penalty limits only in cases initiated after the
effective dates of the amendments. /E.g. R & R Builders Inc.,/ 15 BNA
OSHC 1383, 1393, n. 19, 1991 CCH OSHD ¶ 1991-93 CCH OSHD ¶ 29,531, p.
39,866, n.19 (No. 88-282, 1991); /Caterpillar Inc., /15 BNA OSHC 2153,
2170, n.15, 1991-93 CCH OSHD ¶ 29,962, p. 40,990, n.15 (No. 87-0922,
1993). The inspections in this case were begun on July 30, 1990 and
concluded in September 1990. The citations were issued in January, 1991.
Accordingly, the old penalty structure, with a maximum penalty of $1000
for a serious violation, was in effect and should have been applied by
the judge.

Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that when
assessing penalties, the Commission must give "due consideration" to
four criteria: the size of the employer's business, gravity of the
violation, good faith, and prior history of violations. /J.A. Jones
Constr. Co./, 15 BNA OSHC 2201, 2214, 1991-1993 CCH OSHD ¶ 29,964, p.
41,033 (No. 87-2059, 1992). Staley is a large corporation with a history
of prior violations. Based on the Secretary's evidence regarding
Staley's overall approach to safety, we find that the company is
entitled to little credit for good faith. In assessing an appropriate
penalty for each of the items, we look primarily to whether the
violation was willful, serious or nonserious, and the gravity of the
individual item. Having considered these factors, we assess the
following penalties:

Items 1-3, 6, 8-9, 22-23, 26-27, 29-31, 37, 41-50, 55 and 57- Serious:
26 items at $600 per item; for a total of $15,600

Items 4, 5, 10 and 12-Willful: 4 items at $6000 per item for a total of
$24,000

Items 11, 13-19, 21, 63-65, 68, 71-72, 74-78, 80-83, 87-92,
94-98-Serious: 35 items at $700 per item: total $24,500

Items 20 and 54-Willful: $5000 per item for a total of $10,000

Item 24, 28, 32, 34, 36, 38-40, 56, 58 and 59-Serious: 11 items at $250
per item for a total of $2750.

Items 33, 35 and 52-Serious: $100 per item for a total of $300.

Item 51-Other than serious: $50

Item 60-Serious: $500



*D*/. /*Items 100-212*//

1. /Did the judge err by finding that 26 locations at the plant were
Class II Division 2 Locations?/

a. /Background/

//According to § 1910.399

A Class II, Division 2 location is a location in which: (/a/)
combustible dust will not normally be in suspension in the air in
quantities sufficient to produce explosive or ignitible mixtures, and
dust accumulations are normally insufficient to interfere with the
normal operation of electrical equipment or other apparatus; or (/b)/
dust may be in suspension in the air as a result of infrequent
malfunctioning of handling or processing equipment, and dust
accumulations resulting therefrom may be ignitible by abnormal operation
or failure of electrical equipment or other apparatus.



Note: /This classification includes locations where dangerous
concentrations of suspended dust would not be likely but where dust
accumulations might form on or in the vicinity of electric equipment/.
These areas may contain equipment from which appreciable quantities of
dust would escape under abnormal operating conditions or be adjacent to
a Class II Division 1 location, as described above, into which an
explosive or ignitible concentration of dust may be put into suspension
under abnormal operating conditions.

(Emphasis added)

As noted earlier, items 100-212 allege that Staley violated §
1910.307(b) at locations throughout the facility by not having fixtures
and wiring approved for use in a Class II Div. 2 location. At issue is
whether 26 of these locations^(31) <#N_31_> were Class II Div. 2
locations as defined by § 1910.399. There is no dispute that, if
properly classified as Class II Div. 2 locations, the standard was
violated because there were electrical devices inappropriate for a Class
II Div. 2 location at each of the disputed areas.

The definition of a Class II Division 2 location encompasses two primary
hazards. First, should combustible dust be carried into the air, there
is the risk of explosion from an ignition source, such as an electrical
spark. Second, accumulations of dust on machinery pose the hazard of
ignition and fire from heat sources such as the surface of light bulbs.
Another hazard of accumulations of combustible dusts involves secondary
explosions. If an explosion occurs in an area of dust concentrations,
the concussion of the explosion could create a windstorm that would blow
surface dust into the air and force it into suspension where it could
present a risk of explosion from an ignition source. This secondary
explosion usually creates more damage than the initial explosion.

Staley has a history of dust explosions. At the hearing, the parties
focused on an explosion that occurred in 1989 when feed dust in a dryer
in the 14 Building ignited due to heat build-up caused by friction in a
bearing. The ignition traveled through a conveyor and into the dust
collector in the 75 building. Although there were no injuries, the
ensuing explosion blew out windows and caused $500,000 worth of damage.
The Secretary pointed to this explosion as an example of the hazard of
dust explosions and to establish the likelihood of potentially explosive
environments at the Staley facility.

The judge affirmed the 26 violations. He found that all of the disputed
areas contained combustible dusts in sufficient quantities to meet the
criteria for Class II Div 2 locations set out in § 1910.399. The judge
rejected Staley's claims that, for the areas to be classified as Class
II Div. 2, the concentrations of dust in those areas had to exceed the
Lower Explosive Limit (LEL) ^(32) <#N_32_> for that dust. The judge also
rejected Staley's contention that a Class II Div. 2 location must be
within a certain distance from the source of the dust. Specifically, the
judge rejected the testimony of Staley's control director, Bob Moore,
that NFPA 497B (/Classification of Class II Hazardous (Classified)
Locations for Electrical Installations in Chemical Process Areas) /was
applicable to Staley's facility. NFPA 497B limits Class II Div. 2 areas
to locations 10-30 feet from a dust source (depending on certain
physical properties of the dust). Central to his rejection of Moore's
testimony was the judge's conclusion that NFPA 497B applies to chemical
process areas, while Staley's plant was an agricultural facility. The
judge noted that Staley's interpretation of the NFPA document was
inconsistent with both NFPA's recommended practice as well as the plain
language of § 1910.399.

Staley renews these claims on review.

b. /Discussion/

Contrary to Staley's assertion, the language of § 1910.399 makes it
clear that a Class II Div. 2 classification does not depend on whether
these combustible^(33) <#N_33_> dusts are present in excess of its
LEL.^(34) <#N_34_>As § 1910.399 states: "A Class II, Division 2 location
is a location in which: combustible dust/will not normally /be in
suspension in the air in quantities sufficient to produce explosive or
ignitible mixtures/. . . ." /The parties do not dispute that the dusts
here are technically considered "combustible." However, Staley argues
that the judge failed to consider the degree of combustibility of the
various dusts when determining whether an area was properly classified
as a Class II Div. 2 location.

The provisions of the standard do take into account the fact that
certain dusts are more combustible than others. For example, under
§1910.307(b)(2) the explosive character of the dust is relevant in
determining what type of equipment should be used in the classified
location. However, neither § 1910.307 nor § 1910.399, the standard which
defines Class II Div. 2 locations, rely on the degree of combustibility
of the dusts when determining whether an area is a Class II Div.2
location. Staley's argument assumes that because dextrose, which is one
of the less combustible dusts, melts, it presents no danger of igniting
from prolonged contact with uncovered light bulbs or unprotected
electrical connections. However, the evidence also establishes that when
dust is on a bulb, it creates an insulating effect causing the bulb to
burn hotter. This increases the possibility of a dust cloud explosion
should there be sufficient accumulations of dust. Also, over time,
layered dust will carbonize. Carbonized dust will catch fire at a lower
temperature than uncarbonized dust. A warning about the hazards of
carbonized dust is contained in the appendix to each of the agricultural
NFPA standards (1987 Edition) (i.e. NFPA 61-A -appendix A-7-1.4; NFPA
61-B-appendix A-7-7-1.4; NFPA 61-C -appendix A-6-1.4; and NFPA
61-D-appendix A-6-1.4):

/Static deposits of combustible dust on heated surfaces are subject to
ignition due to carbonization of the dust./ Understanding of the
mechanism involved is lacking, but it does appear that there is no
direct relationship between the temperature required to ignite a dust
cloud and that required to ignite a dust layer. Rather, a time versus
energy (temperature) relationship appears to be involved. The higher the
temperature, the shorter the time needed for carbonization and
subsequent ignition.

The energy required to ignite a dust cloud must be great enough to raise
the dust particles to their ignition temperature and overcome heat
losses to the surrounding air. The energy must also be of sufficient
duration to ignite enough adjacent dust particles to sustain propagation
of the flame front. A static dust deposit has none of the dynamic motion
and heat losses of a dust cloud. Also, the insulating characteristics of
organic dusts act to retard the heat loss from particles of dust in
intimate contact with the heated surface. Thus, a lower temperature is
required to establish the time/energy relationship leading to ignition.
This behavior, combined with the fact that the ignition temperature of
an organic dust is lowered by prolonged heat exposure, gives cause for
concern over dust deposits on heated surfaces. The ignition of a dust
layer and the subsequent quiescent burning may provide the pilot flame
necessary to ignite a dust cloud.^(35) <#N_35_>



(Emphasis added)



We also reject Staley's argument that, based on language in NFPA 497B,
Class II Div. 2 locations are limited to those 10-30 feet from a dust
source.^(36) <#N_36_> Although they are not controlling, the Commission
has looked to other standards and codes to clarify the meaning of
standards. /See ConAgra Flour Milling Co., /16 BNA OSHC 1137, 1142, n.4,
1993-1995 CCH OSHD ¶ 30,045 , p.41,235 , n.4 (No. 88-1250, 1993), /rev'd
on other grounds/, 25 F.3d 653 (8th Cir. 1994); /Gold-Kist, Inc. /7 BNA
OSHC 1855, 1859-60; 1980 CCH OSHD ¶ 24,205, p. 29,443 (No.76-2049,
1979)(standard using broad terms acquires meaning when read together
with other codes or indicia of industry custom). Here, however, NFPA
497B, which Staley relies upon, is not a standard the Commission would
rely on to clarify the definition of a Class II Div. 2 area.

At the outset, we find nothing in § 1910.399, which defines a Class II
Div. 2 area, that can be reconciled with a requirement that a Class II
Div. 2 location be within 10-30 feet of a dust source. The first part of
the standard states that a Class II Div. 2 location is a location where
"combustible dust will not normally be in suspension in the air in
quantities sufficient to produce explosive or ignitible mixtures, and
dust accumulations are normally insufficient to interfere with the
normal operation of electrical equipment or other apparatus. . ."
Nothing in this definition depends on or is conditioned upon the
location from the dust source. Reading such a distance requirement into
the definition would not clarify § 1910.307, it would change the
standard beyond anything apparent from a fair reading of it.

Moreover, as the judge properly noted, NFPA 497B applies to chemical
facilities, while Staley's plant is an agricultural facility. We find
unpersuasive Staley's claim that its plant should be considered a
chemical facility because, except for the three elevators where corn is
received, stored and handled, the plant uses chemical processes to
manufacture agricultural products. It points to section 1-1.2 of the
document which defines a chemical process area as "part of a
manufacturing facility where combustible dusts are produced or used in
chemical reactions or are handled or used in operations such as mixing,
coating, extrusion, conveying, drying, grinding, etc." However, Staley
fails to consider sections 1-1.3, 1-1.4, and 1-1.6 of NFPA 497B. Section
1-1.3 states that NFPA 497B:

. . .does not apply to situations that may involve catastrophic failure
of, or catastrophic discharge from, silos, process vessels, pipelines,
tanks, hoppers, or conveying or elevating systems.



Along the same lines, Section 1-1.4 states that NFPA 497B



. . . does not apply to agricultural grain handling facilities except
where powdered grain is used in a chemical reaction or mixture.



Most telling, section 1-1.6 states that the document is



. . .not intended to supersede or conflict with applicable requirements
of the following NFPA dust standards:

. . .NFPA 61A, Manufacturing and Handling Starch

NFPA 61B, /Grain Elevators and Facilities Handling Bulk Raw Agricultural
Commodities/

NFPA 61C, /Feed Mills/

//NFPA 61D, /Milling of Agricultural Commodities for Human Consumption/

These four documents all appear to be more applicable to Staley's
workplace than NFPA 497B. Their scope provisions state that NFPA
61A^(37) <#N_37_>

applies to "all facilities designed for drying, grinding, conveying,
storage and packaging of dry starches," while NFPA 61B applies to "all
facilities designed for receiving, shipping, handling, and storing of
bulk raw agricultural commodities." NFPA 61C is applicable to "all
facilities designed principally for the production of dry feed products
from agricultural commodities," and NFPA 61D applies to "all facilities
designed principally for the cleaning, size reduction, purifying,
integral packaging and bagging, classifying, bulk loading of
agricultural commodities such as (but not limited to) wheat, rye,
barley, corn, milo, oats, rice, safflower seed, soybeans, cocoa, spices,
and similar commodities which may present a fire or dust explosion
hazard." While chemical processes may be incidental to the primary
purpose of refining corn products, it is undisputed that the purpose of
the Decatur facility was the production of corn by-products^(38)
<#N_38_> through the milling process. Processes at the facility included
the production, storage and packing of starches (NFPA 61A), feed
products (NFPA 61C) and handling of corn (NFPA 61D). Certainly, the
majority of the disputed items involved areas that were unquestionably
involved in processes directly controlled by the NFPA agricultural
provisions. The provisions of these codes refer the reader to the
general Fire Protection provisions for Class II Div. 2 areas set forth
in NFPA 70 (which does not limit applicability to distance from the
source). (See e.g. NFPA 61-A 12-1.2; NFPA 61-B 11-1.2; NFPA 61-C 11-1.2;
NFPA 61-D 11-1.2)

Staley also points out that NFPA 497B specifically applies to group F
and G type dusts and that the dust types are divided by their "nature."
Group G type dusts include flour and grain, but also includes, "wood
flour, plastic, and chemicals." Thus, Type E dusts include combustible
metals, while Type F relates to combustible carbonaceous dusts. Type G
is a catchall group that includes "other combustible dusts." However,
nothing in the list of dusts applicable to NFPA 497B suggests that they
are intended to be exclusive. Therefore, the listed dust types could be
relevant to other parts of the NFPA. Indeed, if the inclusion of grain
and flour in Type G /a fortiori/ means that all flours and grains are
covered by NFPA 497B, then there would be no reason for NFPA 61A-D.^(39)
<#N_39_>

Moreover, the facts of this case suggest why the Secretary did not make
the classification of an area dependent upon its distance from a dust
source. The evidence establishes that there was a substantial amount of
dust which accumulated because of Staley's poor housekeeping
practices.^(40) <#N_40_> It is undisputed that there were sources
sufficient to leave layers of dextrose fines over various locations in
the plant, including each of the disputed areas involving dextrose dust.
Thus, it is possible that, over time, large quantities of dextrose dust
could accumulate beyond the distances set out in NFPA 497B.^(41) <#N_41_>

Finally, Staley argues that some locations should not be classified as
Class II Div.2 locations because they were closed off from the dust
source. Even though NFPA 497B, which Staley relies on, states that
"partial partitions" may constitute a barrier sufficient to prevent an
area from being classified as Class II Div. 2, that barrier must be
"effective in preventing the passage of dust in suspension or layer
form." NFPA 497-B at ¶ 3-4.5. The evidence demonstrates that the
barriers adjacent to the 26 disputed locations were not effective, with
substantial quantities of dust being present in each of the disputed
locations. Therefore, even if NFPA 497B were applicable, Staley's
partial partitions were insufficient to prevent the areas from being
classified as Class II Div. 2 locations.

We find that, for each item, the evidence establishes that there was
sufficient dust to warrant classification as a Class II Div. 2 location.
For each item, there is evidence of substantial quantities of dust on
the floor or on equipment. While some areas had accumulations caused by
leaking equipment^(42) <#N_42_> or leaky bags of dextrose,^(43) <#N_43_>
others, though distant from the source of the dust, were in locations
where the configuration of the building created a wind tunnel effect
that carried dust from the source to the cited area.^(44) <#N_44_>
Accordingly, we affirm the violations of § 1910.307(b) as to the 26
disputed areas.

/2. Characterization/	

Although we found that the general evidence did not establish the
willfulness of items 1-99, that evidence combined with evidence
specifically relevant to Staley's overall attitude toward the hazard of
explosive dust and its concomitant obligation to provide electrical
equipment approved for Class II Div. 2 locations, is sufficient to
establish that the company was plainly indifferent to the requirements
of § 1910.307(b).^(45) <#N_45_>

As noted, /infra/, Staley suffered an explosion in 1989 when feed dust
in a dryer in the 14 Building ignited due to heat build-up caused by
friction in a bearing. The ignition traveled through a conveyor and into
the dust collector in the 75 building. An event of this magnitude would
have given Staley a heightened awareness of the danger of combustible
dusts. In fact, Staley was sufficiently aware of the problem that it
classified entire buildings as Class II Division 2 areas to take the
discretion of categorizing particular locations out of the hands of the
individual area supervisors. Furthermore, a mock OSHA inspection,
conducted in 1987, and Page's 1989 audit warned Staley that many
electrical devices were missing bolts, had exposed wires, or otherwise
were not proper for a Class II Div. 2 location. Yet, despite this
heightened awareness of the hazard of explosive dust throughout its
facility, and of the numerous noncompliant electrical devices at those
locations, the evidence establishes that many of Staley's supervisory
personnel were not properly trained regarding the hazards presented by a
Class II Div. 2 area so that they could take proper measures to abate
the violative conditions. Supervisors such as Plant Operations Manager
Michael Slimbarski were unaware that the areas they supervised were even
considered Class II Div. 2 locations. Other managers received no
training on the classification of areas or the requirements regarding
approved electrical equipment in areas containing combustible dusts.
Shift coordinator Gordon Green testified that he was not given any
specific training regarding the need for approved electrical equipment
in either the 12 or 26 Building. He was also unaware of the potential
for an explosion when electrical boxes are not kept dust ignition proof,
or the reasons why it was important to have protective globes on bulbs.
Indeed, Green erroneously believed that the reason for having globes on
bulbs was to protect the bulb from being broken. Moreover, Green
testified that, not only was he not responsible for assuring that
electrical equipment in his area was approved, he could not identify who
was responsible. Similarly, shift coordinator Ron Young testified that,
to the best of his knowledge, shock was the only hazard posed by
improperly sealed junction boxes. He was unaware of the explosion hazard
posed by improperly sealed boxes in a dusty environment.

The results of Staley's failure to properly train its supervisory
personnel regarding hazards associated with Class II Div. 2 locations is
demonstrated by the conditions in the 20 Building, at the elevator
penthouse. Jeffrey Kunzeman, a Staley employee, testified that employees
would go to this area and entertain themselves by watching sparking
caused by dust particles being ignited by the elevator contacts.
According to Kunzeman, rather than expressing alarm at the situation,
supervisory personnel he told about the condition "thought it was pretty
neat." While the supervisors discussed cleaning the area with Kunzeman,
there is no evidence that the area was cleaned or that the condition was
abated.^(46) <#N_46_> Nor, despite the obvious explosion hazard, did the
supervisors find it necessary to ensure that all electrical devices were
appropriate for the location.

These failures to train supervisors establish a pattern and course of
conduct that demonstrates that Staley was plainly indifferent to Class
II Div. 2 hazards. /See Kaspar Wire Works Inc. /18 BNA OSHC 2178, 2183,
2000 BNA OSHC ¶ 32,134, p. 48,408 (No. 90-2775, 2000), /appeal filed,
/No.00-1392 (D.C. Cir. Sept. 6, 2000). Considering this evidence in
conjunction with the evidence about Staley's heightened awareness and
the general evidence discussed earlier, we find that the 89 violations
cited here were properly classified as willful. /Pepperidge Farm, Inc.
/17 BNA OSHC at 1999, 1995-97 CCH OSHD at p. 44,009.

3. /Penalties/

Although we find each of the affirmed Class II Div. 2 violations to be
willful, we agree with Staley that the judge improperly failed to
consider the individual characteristics of each violation when
determining the penalty. While Staley's plain indifference to the hazard
of Class II Div 2 locations is common to each of the affirmed
items,^(47) <#N_47_> the particular characteristics of each location are
not the same, particularly the levels and nature of the dusts. These
factors go directly to the likelihood of an explosion or fire and,
therefore, the gravity of the violations. Other factors involved are the
number of employees exposed at each location, and the duration of each
violation.

Classifying the items according to their gravity, we find that the
evidence establishes that the following items are of moderately high
gravity. These items were either in high dust areas and/or had
substantial exposed wiring that resulted in a heightened possibility of
explosion or fire:

/High Gravity Items/: 102, 106-108, 110, 113, 116, 118, 135-138, 146,
148, 149, 153, 159, 160, 178, 179, 197, 201, 202 and 205. For each of
these 24 willful items, we find an appropriate penalty to be $8000, for
a total penalty of $192,000.

We find that the following items to be of moderate gravity, based on
lower dust levels and/or less exposed wiring. While presenting a
substantial risk of fire or explosion, these items did not rise to the
gravity of the previous group of items.

/Moderate Gravity Items:/ 101, 104, 111, 117, 119, 120, 123, 125, 129,
131, 133, 134, 139-143, 145, 147, 150-152, 155, 157, 168-171, 173, 176,
181, 182, 184-188, 203, 206, 209, 211. For each of these 41 willful
items, we find an appropriate penalty to be $6500, for a total penaltyof
$266,500.

Finally, we find the following items to be of low gravity due to the
lower levels of dust present in the area and, therefore, the reduced
risk of fire or explosion. Many of these items involve areas where
dextrose dust was present. As noted earlier, dextrose, while
combustible, is far less likely to explode or burn than other forms of
organic dusts.^(48) <#N_48_>

/Low Gravity Items:/ 100, 121, 126, 127, 130, 154, 156, 161-166, 172,
174, 175, 177, 180, 189-194. For each of these 24 willful items, we find
an penalty of $5000 to be appropriate, for a total penalty of $120,000.

*Summary*//



//For reasons set forth in this decision:

In Docket No. 91-0637:

1. Citation 2, items 1(a) and 1(b) for violations of 29 C.F.R. § §
1910.1001(j)(2) and (k)(1) are affirmed as willful and a combined
penalty of $8000 is assessed.

2. Citations 2, items 2(a) and 2(b) for violations of 29 C.F.R. § §
1910.1200(h) and (h)(3)(iv) are affirmed as willful and a combined
penalty of $8000 is assessed.



In Docket No. 91-0638:

1. Citation 2, item 7 for violation of 29 C.F.R. § 1910.23(c)(1) and
item 53 for violation of 29 C.F.R. § 1910.219(c)(2)(i)are vacated.

2. Citation 2, items 4, 5, 10, 12 and 20, for violations of 29 C.F.R. §
1910.23(c)(1) are affirmed as willful and a combined penalty of $29,000
is assessed.

3. Citation 2, items 1-3, 6, 8, 9, 11, 13-19, 21, and 22 for violations
of 29 C.F.R. § 1910.23(c)(1) are affirmed as serious and a total penalty
of $10,500 is assessed.

4. Citation 2, items 23, 24, 26-50, 52, 55-60 for violations of 29
C.F.R. § 1910.219(c)(2)(i) are affirmed as serious and a total penalty
of $14,950 is assessed.

5. Citation 2, item 51 for violation of 29 C.F.R. § 1910.219(c)(2)(i) is
affirmed as other than serious and a penalty of $50 is assessed.

6. Citation 2, item 54 for violation of 29 C.F.R. §
1910.1910.219(c)(2)(i) is affirmed as willful and a penalty of $5000 is
assessed.

7. Citation 2, items 63-65, 68, 71-72, 74-78, 80-83, 87-92 and 94-98 for
violations of 29 C.F.R. § § 1910.303(g)(2)(i), 1910.305(b)(2) and
1910.305(d) are affirmed as serious and a total penalty of $18,200 is
assessed.

8. Citation 2, items 100-102, 104, 106-108, 110, 111, 113, 116-121, 123,
125-127, 129-131, 133-143, 145-157, 159-166, 168-182, 184-194, 197,
201-203, 205, 206, 209 and 211 for violations of 29 C.F.R. § 1910.307(b)
are affirmed as willful and a total penalty of $578,500 is assessed.





Thomasina V. Rogers

Chairman



Dated: October 18, 2000

VISSCHER, Commissioner, concurring in part, dissenting in part:

I agree with the majority's decision to vacate items 7 and 53 of
Citation 2 in Docket No. 91-0638. I also agree with the majority's
characterization of the fifteen machine guarding violations found in
Citation 2 of the same docket number. But I disagree with the majority's
findings of willfulness regarding certain of the violations here. After
a thorough review of the evidence, the judge determined that only the
violations of 29 C.F.R. §§ 1910.1001(j)(2) and (k)(1)(for failure to
label and to clean up debris containing asbestos), and 29 C.F.R. §
1910.307(b)(for failure to use electrical equipment approved for Class
II Division 2 locations) were willful. The judge found that the "generic
evidence" of willfulness offered by the Secretary in this case was not
sufficient to establish the willfulness of any of the cited violations.
But when that evidence was viewed together with evidence that was
specific to the asbestos and electrical equipment violations, the judge
concluded that willfulness was established with regard to those
violations. As the judge gave sound reasons for his conclusions, I would
adopt his analysis with regard to the willfulness of Staley's
violations.^(49) <#N_49_>

Since I disagree with the majority with regard to the willfulness of
items 2(a) and 2(b) of Citation 2 in Docket No. 91-0637 (for violations
of the hazard communication standard) and items 4, 5, 10, 20, and 54 of
Citation 2 in Docket No. 91-0638 (for violations of platform guarding
and machine guarding standards), it follows that I would assess lower
penalties for those violations.^(50) <#N_50_>







/s/ Gary L. Visscher

Commissioner





Date: October 18, 2000

WEISBERG, Commissioner, concurring in part and dissenting in part:

I concur, for the reasons set forth in the lead opinion, in the decision
in Docket No. 91-0637 to affirm Citation 2, items 1(a) (failure to affix
warning labels to asbestos-containing materials) and 1(b) (allowing
asbestos dust to accumulate) as willful violations and to assess a
combined penalty of $8,000, and to affirm items 2(a) and 2(b) as willful
violations of the Hazard Communication (HazCom) standard and to assess a
combined penalty of $8,000. I also join in the decision in Docket No.
91-0638 to vacate Citation 2, item 7 (based on the Secretary's failure
to establish that it was a separate item) and item 53 (based on a lack
of proof of exposure).

Unlike my colleagues, however, I would also affirm all of the remaining
citation items as willful, relying primarily on the evidence relating to
Staley's refusal to take timely and appropriate action in response to
the April 1989 audit at the Decatur facility. This report informed the
company that there were literally hundreds of safety violations in the
inspected areas, many of which required immediate attention, and that
building 44 was in such bad condition that it had "literally gone to
hell in a hand-basket." In my view, this establishes that Staley had a
heightened awareness of the cited hazards and acted with plain
indifference by consciously disregarding the audit report and failing to
take corrective action.^(51) <#N_51_>

I take issue with my colleague's finding that /nothing/ in the general
evidence demonstrates that Staley consciously disregarded or was plainly
indifferent to employee safety sufficient to show a willful state of
mind. In my view, the evidence amply establishes the company's willful
state of mind -- its heightened awareness of hundreds of hazards, and
its indifference and refusal to take timely and appropriate action to
correct those hazards.

By way of backgound, in March 1989 the National Institute for
Occupational Safety and Health (NIOSH) conducted a survey of health
hazards at Staley's Decatur facility. During this survey the inspectors
were forced to evacuate the starch processing area when ethylene oxide
and /or propylene oxide leaked into the air, making breathing difficult
and setting off an outdoor alarm system. A respirator was requested for
reentry, but none was immediately available. When a respirator was
finally provided, it began to leak within a few minutes of exposure.
Meanwhile, Staley operators continued to enter the area with no personal
protection. The NIOSH report on its investigation into the incident
concluded:

The fact that programs for personal protective equipment were not
effectively in place in starch processing leads us to assume that they
may be absent in other areas as well. In addition, lack of training and
demand for product seems to have circumvented measures which were
specifically implemented to reduce potential exposure.^(52) <#N_52_>	



In April 1989, in response to employee complaints and the NIOSH
evaluation, Staley safety personnel conducted a safety audit of 7 of the
24 departments at the Decatur facility. Staley safety engineer Kendall
Page took notes and photographs during the audit. Following the audit
Page prepared three handwritten reports which he submitted to Lynn
Elder, Staley's corporate director of safety. In addition to comments on
Staley's HazCom program, Page noted in his report that there were
hundreds of "safety type violations." Page's report specifically stated:

In addition to the above mentioned items there are literally hundreds of
safety violations through out this area. In summary 4 & 6 buildings has
some problems that need immediate attention.

. . . .

[about building 29]

[T]his building is full of electrical problems, . . . and guarding
problems. A complete top to bottom safety inspection should be done as
soon as possible. There are many OSHA citations present.

. . . .

[about building 44]

Lynn, I have never seen this building in such bad condition. The
building has literally gone to hell in a hand-basket. As noted in other
buildings, there are literally hundreds of safety type violations
through out the area.



According to Page, his reference to hundreds of safety violations
included a load out area platform not equipped with guardrails,
electrical boxes without covers, exposed live wires, electrical panels
without covers, switches without covers and unguarded couplings on pumps
and other motors.

Most of these violations were obvious and clearly visible to supervisors
in the area, and had existed for months and, in some instances, for
years. When Page informed management of the violations and requested
permission to conduct a thorough inspection in light of the hazards
identified during the audit, his request was refused. Rather, Lynn Elder
asked Page to destroy his notes. Page testified that about a week later
Elder told him that he had spoken to Robert Jansen, Corporate Vice
President of Operations, about the contents of the reports, and that
Jansen indicated that he was aware of the problems in the plant but that
they had to get the networking project (a long term capital improvement
plan intended to increase the production capability in the Decatur
facility) done before they would try to correct some of the safety
problems at the plant. In addition, there is Page's unrebutted testimony
that certain individuals in Staley's management considered implementing
safety measures based not on whether those measures would further
employee safety, but on whether the cost of effectuating such measures
outweighed possible OSHA penalties which Staley might incur.^(53) <#N_53_>

To prove that a violation is willful, the Secretary must show that the
violation "was committed voluntarily with either an intentional
disregard for the requirements of the Act or with plain indifference to
employee safety." /Sal Masonry Contractors, Inc./, 15 BNA OSHC 1609,
1613, 1991-93 CCH OSHD ¶ 29,673, p. 40,210 (No. 87-2007, 1992). To show
intentional disregard, there must be evidence that an employer knew of
an applicable standard or provision prohibiting the condition and
consciously disregarded it. /Williams Enterp. Inc./, 13 BNA OSHC 1249,
1257, 1986-87 CCH OSHD ¶ 27,893, p. 36,589 (No. 85-355, 1987).

Recently, in /Branham Sign Company, /18 BNA OSHC 2132, 2134, 2000 CCH
OSHD ¶ 32,106, p. 48,263 (No. 98-752, 2000) my colleagues discussed the
criteria for determining whether a violation is willful:

A violation is willful if committed with intentional disregard for the
requirements of the Act or with plain indifference to employee safety.
/Williams Enterp., Inc., /13 BNA OSHC 1249, 1256, 1986-87 CCH OSHD ¶
27,893, p. 36,589 (No. 85-355, 1987). Thus, the focal point of a willful
classification is the employer's state of mind when the violation was
committed. /Brock v. Morello Bros. Constr., /809 F.2d 161, 164 (lst Cir.
1987); /Monfort of Colorado, Inc.,/ 14 BNA OSHC 2055, 2062, 1991-93 CCH
OSHD ¶ 29,246, p. 39,186 (No. 87-1220, 1991). The Secretary must show
that the employer had a 'heightened awareness' of the illegality of the
conduct at issue. /E.g. Pentecost Contrac. Corp., /17 BNA OSHC 1953,
1955, 1995-97 CCH OSHD ¶ 31,289, p. 43,965 (No. 92-3788, 1997);
/Williams Enterp., Inc./, 13 BNA OSHC at 1256-57, 1986-87 CCH OSHD at p.
36,589. An employer who knows an employee is exposed to a hazard and
fails to correct or eliminate the hazardous exposure commits a willful
violation if the employer knows of the legal duty to act, for an
employer's failure to act in the face of a known duty demonstrates the
knowing disregard that characterizes willfulness. /See Sal Masonry
Contrac., Inc.,/ 15 BNA OSHC 1609, 1613, 1991-93 CCH OSHD ¶ 29,673, p.
40,210 (No.87-2007, 1992); /accord A. Schonbek & Co.,/ 9 BNA OSHC 1189,
1191, 1980 CCH OSHD ¶ 25,081, p. 30,984 (No.76-3980, 1980), /aff'd/, 646
F.2d 799, 800 (2d Cir. 1981); /Tampa Shipyards, Inc.,/ 15 BNA OSHC 1533,
1541, 1991-93 CCH OSHD ¶ 29,617, pp. 40,103-04 (No. 86-360, 1992).
Alternatively, the Secretary can establish willfulness by showing that
the employer had a state of mind such that, if informed of the duty to
act, it would not have cared. /Morello,/ 809 F.2d at 164.



In addition, a willful violation is not justified if an employer has
made a good faith effort to comply with a standard or eliminate a
hazard, even though the employer's efforts were not entirely effective
or complete. /Williams Enterp., Inc./, 13 BNA OSHC at 1256-57, 1986-87
CCH OSHD at p. 36,589.

In /Kaspar Wire Works,/ 18 BNA OSHC 2178, 2188-89, 2000 CCH OSHD ¶
32,134, 48,413-14 (No. 2775, 2000), /appeal docketed/, No. 00-1392 (DC
Cir. Sep. 1, 2000) my colleagues, following and applying extant
Commission precedent, agreed that the employer's failure to install a
point of operation guard on a punch press showed plain indifference and
constituted a willful violation. A unanimous Commission concluded that
Kaspar had a//heightened awareness of the hazard created by an unguarded
punch press based on a prior citation for failure to guard a different
punch press under the same standard, which was affirmed by a Commission
judge, and the fact that management personnel knew that there had been a
"rash" of serious punch press accidents. Although Kaspar had a
heightened awareness of punch press injuries and accidents in general,
there was no evidence of a heightened awareness that the cited punch
press was unguarded.

In the instant case, however, faced with similar evidence of Staley's
heightened awareness of numerous guardrail, machine guarding, and
electrical equipment guarding hazards and its conscious disregard of, or
plain indifference to, correcting or eliminating those hazards, my
colleagues have chosen to depart from Commission precedent and to add a
new requirement to the legal test for willfulness and impose a new
burden on the Secretary --to establish a heightened awareness of each
individual item, i.e. on a machine by machine or guardrail by guardrail
basis. It is clearly incumbent upon the Secretary to establish each
separate violation cited.^(54) <#N_54_> While the Secretary must
establish an employer's willful state of mind, and arguably must show a
"heightened awareness" of the violative conditions, it does not
necessarily follow that the Secretary must also show a "heightened
awareness" of the existence of each individual citation item. In /Kaspar
Wire Works,/ the Commission also found that the company's failure to
record the vast majority of illnesses and injuries suffered by its
employees during 1988 and 1989 constituted separate willful
recordkeeping violations. 18 BNA OSHC at 2184-85, 2000 CCH OSHD at pp.
48,409-10. The Commission majority did not require the Secretary in that
case to show a "heightened awareness" for each separate recordkeeping
violation.^(55) <#N_55_> As I noted in /Kaspar/, there may be circumstances

where an employer's willful state of mind informs a course of conduct
with respect to a particular category of hazards or requirements.
Consistent with that view is the Commission's decision in /Pepperidge
Farm Inc./, [citation omitted] where the Commission affirmed as willful
176 separate recordkeeping violations, most of which derived from a
failure to follow the OSHA 200 instructions, where Pepperidge Farm's
management officials failed to ensure compliance with a company-wide
directive to accurately adhere to OSHA recordkeeping requirements. There
was no other individualized evidence relied on in that case to support
the willful characterization of each of the violations.



18 BNA//OSHC at 2184, n.15, 2000 CCH OSHD at pp. 48,409-10, n.15.

In the instant case, it is undisputed that Staley management officials
at the Decatur facility were aware of and familiar with the provisions
of all the cited standards. Provisions of the company's Safety Code Book
related directly to the cited items involving fall protection (items
1-22), machine guarding (items 23-60), and electrical safety (items
61-99). Safety engineer Page called management's attention to the
existence of hundreds of safety violations including guarding and
electrical violations but was told to omit those items from his formal
report. By showing that Staley knew of the Act's requirements and
knowingly disregarded them, the Secretary established a prima facie case
of willfulness based on conscious disregard. /See Donovan v. Williams
Enterp./, 744 F.2d 170, 180 (D.C. Cir. 1984) (where Secretary's repeated
warnings and advice to company about failure to comply with construction
site safety standards went unheeded, court held that "[t]hese facts
alone are sufficient to establish 'intentional disregard of' and 'plain
indifference to' OSHA's regulations"); /Calang Corp./, 14 BNA OSHC 1789,
1791-92, 1987-90 CCH OSHD ¶ 29,080, pp. 38,870-71 (No. 85-319, 1990)
(willful violation where company consciously disregarded OSHA
requirements after compliance officer had correctly explained
requirements of trenching standard); /Central Soya De P.R. v. Secretary
of Labor/, 653 F.2d 38, 39 (1st Cir. 1981) (given knowledge of the
violative condition, it follows that company's failure to take
corrective action was in conscious disregard of the requirements of the
Act and therefore willful).

Notwithstanding that Staley was put on notice by the April 1989 audit
that hundreds of guardrail, machine guarding, and electrical equipment
guarding violations existed in several of its buildings, many requiring
immediate attention, and that building 44 was in such bad condition that
it was described as "hav[ing] gone to hell in a hand-basket," the lead
opinion contends that the company's refusal in such circumstances to
take appropriate actions does not demonstrate a willful state of mind.
Rather, Chairman Rogers simply believes that this evidence "demonstrates
serious weaknesses in Staley's approach to safety." She argues that the
record is insufficient to support an inference that, even if Staley knew
of a particular violation, it would not care that it was in violation of
the Act. However, in the instant case, it is not necessary to draw any
inferences -- Staley was specifically and clearly informed by the audit
report about the existence of serious and widespread hazards but
consciously disregarded the report.^(56) <#N_56_>

My colleague contends that Staley's refusal to act on the report does
not establish that the violations were willful because there were tens
of thousands of electrical panels, thousands of motors, and
approximately eight miles of guardrails throughout the plant which were
in compliance with applicable OSHA standards.^(57) <#N_57_> My colleague
appears to be applying something akin to a "substantial" or "percentage
of compliance" test to relieve the company of liability for its willful
failure to take corrective action here. The cases that my colleague
relies on as precedent are readily distinguishable. In /Beta
Construction Co./, 16 BNA OSHC 1435, 1445, 1993 CCH OSHD ¶ 30,239, p.
41,653 (No. 91-102, 1993), /aff'd without published opinion/, 52 F.3d
1122 (D.C. Cir. 1995), the Commission found that a history of three
[safety monitoring] violations over a period of five years for a large
roofing contractor was not sufficiently significant in light of the
extent of the company's roofing work to put the company on notice that
its safety procedures and safety program were inadequate and to
establish a willful state of mind. Similarly, in /J.A. Jones Constr.
Co., /15 BNA OSHC 2201, 2211, 1991-93 CCH OSHD ¶ 29,964, pp. 41,029-30
(No. 87-2059, 1993), the Commission found with respect to Jones, a major
general construction contractor of international scope which had been
involved in a substantial number of extensive projects, that the
company's prior history of OSHA citations at various locations
throughout the country were not sufficient to place the company on
notice of any serious flaws in its overall safety program. Neither /Beta
Construction/ nor /J.A. Jones/ suggest that it is appropriate for the
Commission to apply a percentage of compliance test to negate
willfulness. Rather, these cases hold that the mere existence of a small
number of similar violations by a large company working at a substantial
number of projects does not necessarily establish "heightened
awareness." In neither of these cases had the company received reports
of existing hazards or been specifically warned by a safety audit that
there were hundreds of safety violations and failed to take corrective
action in conscious disregard of the requirements of the Act, as in the
instant case.

Accordingly, I dissent from the majority's conclusion that Staley's
violations pertaining to guardrails, machine guarding and electrical
hazards were not all willful.



/s/

Stuart E. Weisberg

Commissioner

Dated: October 18, 2000

1. As will be discussed, /infra/, several of these items are not before
the Commission on review.

2. At the time of the citation, the cited standard stated:

§ 1910.1001 *Asbestos*/./

* * *

(j) /Communication of hazards to employees/

//	* * *

(2) /Warning labels. / (i) Labeling. Warning labels shall be affixed to
all raw materials, mixtures, scrap, waste, debris, and other products
containing asbestos, tremolite, anthophyllite, or actinolite fibers, or
to their containers.//

//

3. Specifically, the locations were:

Building 10: third floor, streamline piping above the resin bins

Building 1: second floor, insulation on a steam pipe west of Boiler #23

Building 17: basement, insulation on pipe near elevator

Building 5: fourth floor, insulation on pipe near the evaporator

Building 20: 2 locations-basement and third floor

Building 44: third floor, insulation on a pipe to hot water tank #18

Building 29: 3 locations- third floor steam pipe

third floor crude oil tank

along pipe adjacent to the ascidulators catwalk

Building 118: tank insulation

4. At the time of the citation, the cited standard stated:

§ 1910.1001 *Asbestos*/./

* * *

(k) /Housekeeping. /(1) All surfaces shall be maintained as free as
practicable of accumulations of dusts and waste containing asbestos,
tremolite, anthophyllite, or actinolite.

5. /E.g/. item 1(a) instance (g), item 1(b) instance (a); item 1(b)
instance (e)

6. Together with other evidence, this safety program may be considered
when determining whether Staley willfully ignored its responsibilities.
/Morrison-Knudsen Co./Yonkers Contrac. Co., A Joint Venture/, 16 BNA
OSHC 1105, 1127, 1993-95 CCH OSHD ¶ 30,048, p. 41,285 (No. 88-572, 1993).

7. We note that this case arose before the Act was amended to raise the
penalty levels. At the time of the citation, the maximum penalty for a
willful citation was $10,000.

8. The standard provides in pertinent part:

§ 1910.1200 *Hazard communication*/./

* * * *

(h) /Employee information and training. /(1) Employers shall provide
employees with effective information and training on hazardous chemicals
in their work area at the time of their initial assignment, and whenever
a new physical or health hazard the employees have not previously been
trained about is introduced into their work area.





* * * *

(3) /Training. /Employee training shall include at least:

* * * *

(iv) The details of the hazard communication program developed by the
employer, including an explanation of the labeling system and the
material safety data sheet and how employees can obtain and use the
appropriate hazard information.

9. Item 2(a), as amended, alleged failures to train with regard to
twelve substances at the following buildings:

Silica sand-elevator D

Filteraid- buildings 1, 5, 10, 11, 29

Dicalite-building 90

Nickel catalyst-building 90

Feed dust-building 75

Acid liquor-buildings 9, 29

Sulfur dioxide-buildings 4, 6, 9

Bleach-building 20

Carbon- buildings 1, 10, 85

Flyash-building 123

Coal dust-building 1, 123

Asbestos-building 1, 5, 10, 20, 29, 44



In his decision, the judge incorrectly stated that the Secretary
withdrew the allegations as to four substances. Although the Secretary
amended the complaint to withdraw the allegations as to several
buildings, HazCom violations for each of the cited substances were still
alleged at other buildings. However, the judge still discussed them in
his decision (i.e. filteraid), and neither the Secretary nor Staley
mention the judge's error.

10. Filteraid is a generic name for a filtering material used in the
beverage industry. Specifically, it is put in "check filters" used in
the final step in the filtration of the carbon plant. The filteraid used
by Staley was diatomaceous earth which is composed of 65-70%
cristobalite, a type of silica.

11. The memo also noted, however, that, "[t]he department does need to
assure that documented annual hazard communication review is conducted
in a timely manner."

12. Marquis testified that, in an eight-hour shift, they would dump
between ten bags and four pallets of filteraid. He did not indicate how
many bags are in a pallet.

13. The hazards of filteraid are those of silica. This includes
silicosis which may result in debilitating, potentially life-threatening
illnesses, typically due to the increased resistance within the lungs,
and cardiac failure. Silica is also listed as a probable human
carcinogen by the IARC (International Agency for Research on Carcinogens).

14. The separate opinion of Commissioner Weisberg cites this incident as
support for all of Staley's violations being willful. We agree that this
incident is certainly relevant to Staley's heightened awareness that its
employees were not adequately trained with respect to the hazards of
ethylene oxide and propylene oxide. However, it is considerably less
relevant to Staley's state of mind with respect to the other violations
at issue in this case. Commissioner Weisberg apparently believes
evidence supporting one willful violation can be used to show that all
violations are willful, even unrelated ones, notwithstanding the fact
that there is no pattern, practice, or course of conduct connecting the
items. This position represents a significant departure from Commission
precedent.

15. Item 25 was vacated by the judge and is not before us on review.

16. Items 61, 62, 66, 67, 69, 70, 73, 79, 84-86, 93, and 99 were either
withdrawn by the Secretary or vacated by the judge and are not before
the Commission on review.

17. § 1910.303*General Requirements*

* * *

(g) /600 Volts, nominal, or less/

/* * */

(2) /Guarding of live parts./ (i) Except as required or permitted
elsewhere in this subpart, live parts of electric equipment operating at
50 volts or more shall be guarded against accidental contact by approved
cabinets or other forms of approved enclosures. . .

18. § 1910.305 *Wiring methods, components, and equipment for general use.*

* * *

(b) /Cabinets boxes, and fittings./

/* * */

//(2) /Covers and canopies. /All pull boxes, junction boxes, and
fittings shall be provided with covers approved for the purpose. If
metal covers are used they shall be grounded. In completed
installations, each outlet box shall have a cover, faceplate, or fixture
canopy. Covers of outlet boxes having holes through which flexible cord
pendants pass shall be provided with bushings designed for the purpose
or shall have smooth, well-rounded surfaces on which the cords may bear.

* * *

(d) /Switchboards and panelboards. /Switchboards that have any exposed
live parts shall be located in permanently dry locations and accessible
only to qualified persons. Panelboards shall be mounted in cabinets,
cutout boxes, or enclosures approved for the purpose and shall be dead
front. However, panelboards other than the dead front
externally-operable type are permitted where accessible only to
qualified persons. Exposed blades of knife switches shall be dead when
open.

19. Items 103, 105, 109, 112, 114, 115, 122, 124, 128, 132, 144, 158,
167, 183, 195, 196, 198-200, 204, 207, 208, 210, and 212 were either
vacated by the judge or withdrawn by the Secretary and are not before us
on review.

20. § 1910.307 *Hazardous (classified) locations*.

* * *

(b) /Electrical installations/. Equipment, wiring methods, and
installations of equipment in hazardous (classified) locations shall be
intrinsically safe, approved for the hazardous (classified) location, or
safe or for the hazardous (classified) location. Requirements for each
of these options are as follows: * * *

21. Thus, where the judge affirmed as serious an item alleged to be
willful, the Secretary argues that the item should have been affirmed as
willful, and Staley contends the items should have been affirmed as
other than serious.

22. § 1910.23 *Guarding floor and wall openings and holes*/./

* * *

(c) /Protection of open-sided floors, platforms, and runways. /(1) Every
open-sided floor or platform 4 feet or more above adjacent floor or
ground level shall be guarded by a standard railing (or the equivalent
as specified in paragraph (e)(3) of this section) on all open sides
except where there is entrance to a ramp, stairway, or fixed ladder. The
railing shall be provided with a toeboard wherever, beneath the open sides,

(i) Persons can pass,

(ii) There is moving machinery, or

(iii) There is equipment with which falling materials could create a hazard.



23. § 1910.219 //*Mechanical power-transmission apparatus*/./

* * *

(c) /Shafting/

* * *

(2) /Guarding horizontal shafting. /(i) All exposed parts of horizontal
shafting seven (7) feet or less from floor or working platform,
excepting runways used exclusively for oiling, or running adjustments,
shall be protected by a stationary casing enclosing shafting completely
or by a trough enclosing sides and top or sides and bottom of shafting
as location requires.

24. The photograph shows footprints and a floor mat near the shaft. The
parties dispute the relevance of these footprints. While the Secretary
contends that these are the footprints of employees, Staley contends
that the footprints were made by the compliance officer and/or
inspection party. The record sheds no light on who made these footprints.

25. The networking project involved coordinating as one unit the
operations of four large corn plants, including the Decatur facility,
which had previously been run as separate units. This required
substantial modifications at Decatur and other facilities.

26. Commissioner Weisberg apparently concludes, without factual support,
that Staley failed to take corrective action with respect to the
numerous violative conditions identified in the various audits. However,
very few of the violations subsequently cited by the Secretary correlate
to violations identified in the audit, and the few cited items that do
correlate to items identified in the audits we find to be willful. Given
the comprehensiveness of the Secretary's inspection, one may infer that
the violative conditions identified in the audits, but not subsequently
cited by the Secretary, no longer existed. In any event, it is
impossible to conclude that those audit items not subsequently cited by
the Secretary went uncorrected by Staley. Accordingly, unlike
Commissioner Weisberg, and recognizing that the Secretary has the burden
of proof, we cannot conclude that, with respect to these items, Staley
"consciously disregarded the report."

27. Commissioner Weisberg's separate statement relies on "Page's
unrebutted testimony" to support his view that the disparate guardrail,
electrical, and machine guarding violations were willful. However, as
noted, that aspect of his testimony is hearsay. Besides Page's hearsay
testimony, Commissioner Weisberg points to no other evidence to
establish that Staley's management considered implementing safety
measures based on whether the cost of those measures outweighed possible
OSHA penalties. We would not assign controlling weight to this
unsubstantiated hearsay where the declarant is not only unavailable for
cross-examination, but not even identified.

28. Commissioner Weisberg states that we are departing from Commission
precedent by requiring the Secretary to establish a heightened awareness
of each individual item. Indeed, our colleague is ignoring our finding
that the Class II Div. 2 items are willful based on Staley's heightened
awareness of the general hazard of combustible dusts at its worksites,
not on its heightened awareness of each individual item. In this case,
Staley's heightened awareness of the hazard was equally applicable to
each of the Class II Div. 2 items. These items have a similar factual
basis and are reflective of a pattern or practice by Staley of ignoring
the hazard of explosive dust. In contrast, there is no similar pattern,
practice, or course of conduct uniting the disparate guarding,
electrical, and machine guarding violations.

Furthermore, contrary to our colleague's suggestion, it is Commissioner
Weisberg who is departing from Commission precedent by finding a willful
violation based on general evidence without a commensurate finding that
such evidence establishes a pattern, practice, or course of conduct that
suggests an intentional disregard, heightened awareness, or indifferent
attitude toward the violative conditions. /See Pepperidge Farm Inc./, 17
BNA OSHC at 1999, 1995-97 CCH OSHD at p. 44,009. The evidence
established such a pattern, practice, or course of conduct in /Kaspar
Wire Works Inc.,/18 BNA OSHC 2178, 2183-4, 2000 BNA OSHC ¶ 32,134 p.
48,408-9 (No. 90-2775, 2000), /appeal filed/, No. 00-1392 (D.C. Cir.
Sept. 26, 2000) and /Pepperidge Farm/, both of which involved
recordkeeping violations, which have a similar factual basis. In
/Kaspar/, Commissioner Weisberg noted that Kaspar's recordkeeping errors
were part of "an overall pattern that reflects its willful state of
mind." 18 BNA OSHC at 2184, n. 15, 2000 BNA OSHC at p. 48,409, n.15. He
also noted that both /Kaspar/ and /Pepperidge Farm/ involved cases
"where an employer's willful state of mind informs a /course of conduct/
with respect to a particular category of hazards or requirements." /Id.
/(emphasis added) Indeed, in /Kaspar/, the high incidence of reporting
errors (86.5%) supported the conclusion that Kaspar's failure to record
was part of a willful pattern, practice, or course of conduct. In
contrast, here the low "error rate" with respect to these items,
combined with the disparate nature of the violations (and the fact that
only a few violative instances noted in the audits were actually cited
by the Secretary), cut against any finding of a consistent pattern,
practice, or course of conduct motivated by a willful state of mind.
Rather, the facts could just as easily support an inference of extreme
laxity, but not willfulness.

29. The Secretary also points out that rotating couplings can fail and
fly apart and that the lack of guards could expose employees to the
danger of being struck by a piece of metal traveling at a high rate of
speed and could result in serious injuries or death. The Secretary
observes that employees recalled instances where couplings had flown
apart. Our review of 29 C.F.R. §219(c)(2)(I) demonstrates that its
purpose was to prevent entanglement. We find no support for the
Secretary's contention in the language of the standard or its
legislative history, or in the case law. The terms of this and most
other machine guarding standards envision protection from normal
operation, not from catastrophic failure. If the standard were designed
to protect against a projectile hazard, the seven foot limit makes no
sense. An employee walking under a disintegrating shaft one foot above
his head, while not in danger of entanglement, would still be exposed to
a serious projectile hazard. Although the Commission is required to
defer to the Secretary's interpretation of an ambiguous standard when
the regulatory language is not free from doubt, /Martin v. OSHRC (CF &I
Steel Corp.)/, 499 U.S. 144, 150 (1991), we find no doubt as to the
meaning of this standard. It clearly and unambiguously applies only to
the hazard of entanglement.

30. The judge erroneously listed item 60 as alleging a violation of the
electrical standards.

31. At issue here are items 107, 108, 113, 117, 118, 123, 126, 127, 130,
140, 146, 147, 151, 153, 168-171, 174, 180, 190, 191-194, and 203.

32. The LEL is the minimum concentration of dust in the air (in grams
per cubic meter of air) which creates a danger of explosion. This
generally varies from 50-100 grams per cubic meter of air. Dr. Charles
Kauffman, an associate professor of aeronautical engineering at the
University of Michigan, who has investigated approximately 40 grain
facility explosions since he first became involved in explosion research
in 1966, testified that, to be safe, a site should stay below half that
concentration. The dust necessary to create an explosive atmosphere need
not be in atmospheric suspension. Due to the possibility of the dust
being kicked up into the air by some force, it is enough that the dust
is laying on the floor or other surfaces.

33. Webster's Third International Dictionary defines "combustible" as
"capable of undergoing combustion or of burning-used esp. of materials
that catch fire and burn when subjected to fire."

34. The judge stated "that the [Class II Div. 2] classification includes
any locations whereexplosive or ignitible dust accumulations may be
found 'on or in the vicinity of ' an electrical ignition source."Staley
erroneously reads this as suggesting that there must be a possibility
that combustible levels, i.e. the LEL, of the dust will accumulate in an
area before it must be designated as a Class II Div. 2 location.

35. The identical paragraph exists in the appendix of the 1995 version
of NFPA 61 at A-7-1.4. Note that the 1995 edition states that the
appendix "is not part of the requirements of this NFPA document but is
included for informational purposes only."

36. In Appendix A to subpart S, Electrical, which includes sections
1910.307 and 399, numerous ANSI and NFPA standards are described as
containing "information which can be helpful in understanding and
complying with the requirements contained in Subpart S."

NFPA 497B, which was issued after Subpart S was promulgated, is not on
the list. Section 1910.307 does refer to NFPA 70 for the list and
definition of hazardous gases, vapors, and dusts by groups characterized
by their ignitible or combustible properties, and for the guidelines for
determining the type and design of equipment appropriate for various
hazardous locations. However, the standards do not refer to or rely on
the NFPA to define what constitutes a classified location. See §§
1910.307(b)(2)(i) and (b)(3).

37. All references to NFPA 61A-D are to the 1987 versions. The document
was amended in 1989. However, the 1989 version is currently unavailable.
In 1995, the A-D divisions of the standards for agriculture and food
product facilities were combined into a single NFPA 61. By comparing the
1987 and 1995 versions, we were able to determine that no significant
changes have occurred in 1989 that would alter our analysis.



The scope provision of this new NFPA 61 states that it applies to the
following:

(a) All facilities that handle, process, blend, mill, receive, load,
ship, package, store, or unload dry agricultural bulk materials, their
by-products, or dusts that include grains, oilseeds, agricultural seeds,
legumes, sugar, spices, feeds, and other related materials;

(b) All facilities designed for manufacturing and handling starch,
including drying, grinding, conveying, processing, packaging, and
storage of dry or modified starch and dry products and dusts generated
from these processes; and

(c) Those seed preparation and meal-handling systems of oilseed
processing plants not covered by NFPA 36, /Standard for Solvent
Extraction Plants./



NFPA 61 § 1-1.1



The following definitions are relevant in determining the scope of this
section:



*Bulk Raw Grain. * Bulk raw grain includes grain materials, such as
cereal grains, oilseeds, and legumes, that have not undergone processing
or size reduction. Cleaning or drying does not constitute processing.



*Starch. *For the purposes of this standard, starch refers to the
manufacture of starch products by the wet milling process.



NFPA 61 § 1-4



38. The facility produced such corn by-products as corn starch, corn
oil, fructose and dextrose, corn gluten, corn fiber, and starches.

39. We also find it instructive that Staley's Director of corporate
safety and risk management, Bob Moore, has served as a member of the
technical committee for NFPA on the agricultural dust standards, NFPA
61A-D. (Staley supported Moore's work with the committee.)

40. Staley's contention that certain cited areas were too far from the
source to allow combustible quantities of dust to accumulate, must be
weighed against the evidence that combustible dusts did accumulate in
those areas, and that the plant was plagued with poor housekeeping which
created the possibility that combustible quantities of these dusts would
accumulate over time.

41. In finding that all 26 areas contained combustible dust more than
sufficient to trigger the requirements of the standard, the judge relied
on the testimony of Dr. Kauffman, who stated that, as a "rule of thumb"
1/64 inch of any combustible or ignitable dust is enough to qualify an
area as a Class II Div. 2 location. Although we have no precise
measurements for the levels of dust at the cited work sites, the
photographic exhibits show substantial amounts of dust at each location.
In the circumstances, the Commission need not decide whether any of
these tests are appropriate. The rationale behind the classification at
issue is a precautionary one: "where dangerous concentrations of
suspended dust would not be likely but where dust accumulations might
form...." § 1910.399. Accordingly, when determining whether an area
should be classified as a Class II Div. 2 area, we must consider not
only the amount of dust currently at the location, but also the
potential for dangerous levels of dust to accumulate.

42. /E.g. /Items 123, 174, 191,

43. /E.g. /Items 170, 171, 174, 191, 192, 193

44. /E.g. /Items 118, 123, 126, 127, 130, 146, 147.

45. Contrary to the implication in Commissioner Weisberg's separate
statement, we note that the decision to find these citation items
willful is unanimous.

46. Staley contends that Kunzeman's testimony should not be credited
because it was internally inconsistent. We are unable to discern the
nature of this alleged inconsistency. Presumably, Staley is arguing that
Kunzeman's statement that the supervisors thought that the sparking was
"neat" is inconsistent with his later statement that they discussed
cleaning the area. We fail to see the inconsistency. In what Kunzeman
described as 15-20 minute conversations, it was certainly possible for
both statements to have been made.

47. Items 103, 105, 109, 112, 114, 115, 122, 124, 128, 132, 144, 158,
167, 183, 195, 196, 198-200, 204, 207, 208, 210 and 212 were either
withdrawn by the Secretary or vacated by the judge.

48. We note that some areas where there was dextrose dust are classified
as of moderate gravity due to the especially high levels of that dust in
the area (i.e. items 168, 169, 170, 171, 173 and 176)

49. Staley acknowledges that under Commission precedents each instance
of failing to take proper precautions with regard to electrical
equipment in Class II Division 2 locations may be cited as a separate
violation, but argues that it is inconsistent to then use generalized
evidence common to all items to find each violation willful. I agree
with Staley's argument. /See Kasper Wire Works/, 18 BNA OSHC 2178, 2199,
2000 CCH OSHD ¶ 32,134, p. 48,425 (No. 90-2775, 2000)//(Visscher,
Commissioner, dissenting)/, appeal filed/, No. 00-1392 (D.C. Cir. Sept.
26, 2000).However, the evidence relied upon by the judge to find that
these violations were willful is specific to Staley's "heightened
awareness" and state of mind with regard to the Class II Division 2
hazard, and appears to apply equally to each violation.

50. As the majority notes, the maximum penalties provided by section 17
of the Act were increased effective with inspections initiated after
March 1, 1991. Since the inspection here was conducted from June to
September, 1990, the maximum penalty for serious and
"other-than-serious" violations in this case is $1000.

51. However, alternatively, even considering each item individually for
specific evidence of heightened awareness, I agree with my colleagues
that the violations for items 4, 5, 10, 20, 54, 100-102, 104, 106-108,
110, 111, 113, 116-121, 123, 125-127, 129-131, 133-143, 145-157,
159-166, 168-182, 184-194, 197, 201-203, 205, 206, 209, and 211 of
Citation 2 of Docket No. 91-0638 should be characterized as willful and
concur with the penalty amounts to be assessed.

52. Contrary to my colleague's assertion, I do not rely on this incident
or report as evidence that all of Staley's violations were willful. This
report pertains most directly to whether the violations concerning
ethylene oxide and/or propylene oxide leakage in the starch processing
area were willful. However, it also provides background and context
concerning conditions at the plant and, most importantly, it was the
catalyst for Staley's 1989 internal audit that identified widespread and
significant hazards that Staley chose to ignore.It is the audit report
that I rely on to establish Staley's willful state of mind and not, as
my colleague suggests, prior unrelated willful violations.

53. Contrary to the implication in the lead opinion, I do not "assign
controlling weight" to this testimony but, rather, find that it is
consistent with the uncontroverted evidence of Page's explicit warnings
of widespread hazardous conditions that went significantly unheeded by
Staley. I also note that while Page's testimony might be hearsay,
Staley's counsel neither objected to it at trial nor presented /any/
rebuttal evidence. Moreover, finding this testimony "[p]erhaps the most
troubling," the judge viewed it as an indication of Staley's attitude,
and relied on it "as an element of good faith [that was] given weight in
determining the appropriate penalty."

54. The Secretary has the burden of proving for each individual
violation that: (1) the standard applies to the working conditions
cited; (2) the employer's noncompliance with the terms of the standard;
(3) employees had access to the violative conditions; and (4) the
employer either knew of the violative conditions or could have known
with the exercise of reasonable diligence. /Armstrong Steel Erectors,
Inc.,/ 17 BNA OSHC 1385, 1386, 1995-97 CCH OSHD ¶ 30,909, p. 43,029 (No,
921-262, 1995). With a few exceptions, Staley stipulated before the
judge that it was in violation of the standards but contended that the
violations were not willful.

55. Commissioner Visscher dissented on the ground that the Secretary
must show a willful state of mind for each separate willful violation
and that there was "no evidence [there] connecting a state of mind with
the individual recordkeeping violations." 18 BNA OSHC at 2200, 2000 CCH
OSHD at p. 48,426.

56. The lead opinion argues that there is no factual support for the
conclusion that Staley failed to take corrective action with respect to
the hundreds of violations described in the audit report. Yet, Page's
testimony is basically uncontroverted -- when he called management's
attention to the existence of hundreds of safety violations in the
inspected areas, Elder asked him to tear up the reports; Elder
subsequently informed Page that safety and health issues would not be
addressed until after the "networking project" was completed; and Page's
request to perform a complete safety audit of the entire facility was
denied. Based on the undisputed evidence that Staley management was
aware of and familiar with the provisions of all the cited standards and
the above evidence showing that Staley consciously disregarded the audit
report, the Secretary met her burden of establishing a /prima facie/
case of willfulness. Staley failed to present evidence to rebut this
/prima facie/ evidence of its willful state of mind. Staley did not
refute Page's testimony or establish what, if any, affirmative action it
took in response to the hazards and unsafe conditions described in the
audit report. My colleague does not cite to any such evidence. Instead,
she "infer[s]" that Staley corrected these hazards solely because some
of the violations identified in the audit report do not appear to have
been cited by the Secretary.

57. The lead opinion suggests that it would be a departure from
Commission precedent to rely on the "general evidence" to establish a
willful state of mind because the cited items are "not part of a
pattern, practice, or course of conduct." In this regard, I can only
emphasize that Staley was specifically and clearly alerted to the
existence of serious and widespread hazards of the particular types that
were cited as willful -- guardrails, machine guarding, and electrical
hazards -- but the warning went unheeded. In /Kaspar Wire Works/, in the
absence of such direct evidence bearing on the employer's state of mind,
the Commission inferred a willful state of mind based on circumstantial
evidence, including the company's 86.5% error rate in failing to report
injuries and illnesses on its OSHA 200 log. In the instant case,
Staley's willful state of mind is clearly and directly established by
its conscious disregard of the audit report and its refusal to take
corrective action to address the hundreds of safety violations brought
to its attention by that report. No inference is necessary in the face
of this direct evidence. In my view, the fact that the OSHA inspection
of this plant resulted in over one thousand citations, but apparently
did not contain a larger percentage of machine guarding, fall
protection, and electrical safety violations, does not negate the impact
of the audit report on Staley's state of mind as it pertained to those
conditions that were violative.