“Docket No. 80-1793 SECRETARY OF LABOR, Complainant, v. AMAX LEAD COMPANY OF MISSOURI, Respondent. UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, and its LOCAL UNION 7447-J, Authorized Employee Representative.OSHRC DOCKET NO. 80-1793DECISIONBefore: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:This case involves the medical removal protectionprovision of the OSHA standard regulating occupational exposure to lead. That provision,29 C.F.R. ? 1910.1025(k)(2),[[1\/]] requires employers to \”maintain the earnings,seniority, and other employment rights and benefits\” of employees they remove fromlead exposure because the employees are at particular risk of suffering lead- relateddiseases.[[2\/]] The case is before the Commission for a second time. In its firstdecision, the Commission concluded that Amax Lead Company of Missouri (\”Amax\”)complied with the standard by paying employees for a 40-hour work week at their regularrate of pay, rejecting the Secretary’s argument that \”earnings\” under thestandard included overtime compensation and paid lunch periods the employees receivedbefore their transfers. Amax Lead Co. of Missouri, 12 BNA OSHC 1878, 1986-87 CCH OSHD ?27,629 (No. 80-1793, 1986). That decision was reversed by the Fifth Circuit, which adoptedthe Secretary’s interpretation of the standard. United Steelworkers of America v.Schuylkill Metals Corp., 828 F.2d 314, 321 (5th Cir. 1987).[[3\/]] The court remanded\”for further proceedings attuned to this opinion. Id. at 323.IThe relevant facts are set forth in our prioropinion, and we shall only briefly summarize them here. Six Amax employees weretransferred out of areas of high lead exposure pursuant to the medical removal provisionsof the lead standard. During the transfer period, the employees were paid for a 40-hourwork week at the regular hourly rate of pay they received in their normal jobs. However,they did not have the opportunity to work overtime, as they would have if they had notbeen transferred. They also no longer received compensation during their half-hour lunchbreaks. Thus, in their regular jobs, they had been paid for 8 hours work on a normal shiftbut were allowed to use a half-hour of that shift for lunch. After being transferred,their shift was 8 1\/2 hours long, of which 8 hours was working time and the remaininghalf-hour was an unpaid lunch period.The Fifth Circuit adopted the Secretary’sinterpretation of the standard, which provides:Earnings includes more than just your base wage; it includes overtime, shiftdifferentials, incentives, and other compensation you would have earned if you had notbeen removed.828 F.2d at 323, quoting 29 C.F.R. ? 1910.1025Appendix B.[[4\/]] In this case, the employees did not receive the amounts they would haveearned if not removed. After removal, they received pay for a 40-hour week at theirregular rate of pay. However, if they had not been removed, they would have earnedadditional sums by working overtime. Under the Fifth Circuit’s decision, Amax violated thestandard by not paying the employees these additional sums.The Secretary also argues that Amax violated thestandard in that employees received paid lunch periods before, but not after, removal. Wedisagree. Under the Secretary’s interpretation, which the Fifth Circuit adopted, theemployer must pay a removed employee the total compensation he would have earned if notremoved. Here, the employees received 8 hours pay per day before removal, and 8 hours payper day after removal at the same hourly rate. Under the Secretary’s agument, theemployees would receive more pay after removal than before. We do not believe that such aresult is consistent with the standard’s objective of assuring that removed employeessuffer no economic loss, nor do we think it is required under the Fifth Circuit’sdecision.[[5\/]]IIAmax contends that the lead standard was invalidlypromulgated for a number of reasons. The company argues that the Secretary did not havethe statutory authority to adopt the provision requiring payment of MRP benefits. Thecompany also contends that the provision for payment of MRP benefits is economicallyinfeasible, that the Secretary did not give interested persons adequate notice that apermissible exposure limit (\”PEL\”) of 50 ?g\/m3 would be adopted, that this PELis technologically and economically infeasible, and that the Secretary improperly reliedon outside consultants during the rulemaking proceedings.The Commission members both reject Amax’s validityarguments, but for different reasons. Chairman Buckley believes that Amax’s arguments areforeclosed by the Fifth Circuit’s remand order. Amax’s arguments were considered andrejected by the D. C. Circuit in a pre-enforcement challenge to the standard. UnitedSteelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1230 (D.C. Cir. 1980),cert. denied, 453 U.S. 913 (1981). In remanding the case to us, the Fifth Circuit notedthat its sister circuit had upheld the standard’s validity and said:The lead standard has been challenged by the industryin litigation from its inception. The courts, however, have not proved a receptiveaudience for the industry’s well-orchestrated complaints. The present movement in thisseemingly never ending symphony is but a minor variation on the prior themes. Thus, unlikea listener to Haydn, the industry should hardly be surprised at the outcome.This symphony of lead litigation should not remainforever unfinished. The industry’s arguments — in large measure resting on the policiesunderlying the lead standard-likely will continue to strike a discordant note in thecourts. The industry must either accept legislative and regulatory atonality, or, if toopainful for the ears (and pocketbooks) attempt to return the score to the composers of thelead policy for reorchestration.828 F.2d at 315-16. This language suggests that theFifth Circuit considered the validity of the standard to be definitively established, atleast for purposes of this case. Accordingly, Chairman Buckley concludes that the court’sdecision precludes further consideration of Amax’s validity arguments.Commissioner Arey does not believe that the FifthCircuit’s decision precludes consideration of Amax’s validity arguments. She notes thatthose arguments were not raised before the court, and believes that the court’s decisioncannot be considered a definitive ruling on an issue it did not explicitly consider.Commissioner Arey would therefore consider Amax’svalidity arguments.[[6\/]] She would reject them for the following reasons.Two of Amax’s arguments–that the Secretary gaveinadequate notice of the 50 ?g\/m3 PEL and that he improperly relied on outsideconsultants–challenge the procedures the Secretary followed in promulgating the standard.In National Industrial Constructors, Inc. v, OSHRC, 583 F.2d 1048 (8th Cir. 1978), theCourt of Appeals for the Eighth Circuit held that the validity of the procedures followedby the Secretary in promulgating OSHA standards cannot be challenged in enforcementproceedings. This case arises in the Eighth Circuit, and the Commission’s decision istherefore appealable to that court.[[7\/]] 29 U.S.C. ?? 660 (a) & (b). CommissionerArey believes that the Commission must follow controlling circuit law, and thereforedeclines to consider Amax’s procedural challenges in this enforcement proceeding.Although Amax’s substantive challenges can be considered under National IndustrialConstructors, Commissioner Arey concludes that those challenges lack merit. Amax arguesthat the Secretary lacked the statutory authority to adopt the provision requiring paymentof MRP benefits. Commissioner Arey rejects that argument for the reasons she stated in St.Joe Resources Corp., OSHRC Docket No. 81-2267 (Apr. 27, 1989).Amax also argues that the MRP provision iseconomically infeasible, and that the standard’s PEL of 50 ?g\/m3 is both technologicallyand economically infeasible. Commissioner Arey rejects these arguments because they arenot supported by the record. Amax argues that the rulemaking record on which the Secretarybased his findings that the standard was feasible does not support the Secretary’sfindings. Without deciding whether it would ever be proper for the Commission to reviewfindings made by the Secretary on the basis of a rulemaking record, Commissioner Areyobserves that the Commission certainly cannot do so here because the rulemaking record isnot before it. The burden of proving, in an enforcement proceeding, that a standard isinvalid lies with the party challenging the standard’s validity. See Atlantic & GulfStevedores v. OSHRC, 534 F.2d 541, 548-50 (3d Cir. 1976). Commissioner Arey concludes thatAmax has failed to meet its burden of proving that the standard is invalid for the reasonsit has stated.In addition, Commissioner Arey notes that there is asecond reason for rejecting Amax’s two arguments that challenge the validity of thestandard’s PEL of 50 ?g\/m3. Amax has not been cited for violating that provision in thiscase. Yet, under Commission precedent, the Commission will only consider validitychallenges that may affect the outcome of a case. DeKalb Forge Co., 13 BNA OSHC 1146,1151, 1886-87 CCH OSHD ? 27,842, p. 36,449 (No. 83-299, 1987). Accordingly, CommissionerArey would reject Amax’s challenges to the validity of the PEL for both of the reasonsstated above.III.We must now determine the proper classification ofthe violation and assess an appropriate penalty. The Secretary originally alleged that theviolation was willful and proposed a $1600 penalty. The administrative law judge rejectedthe willful characterization, found that the violation was de minimis, and assessed nopenalty. Amax argues that the de minimis classification is proper. The Secretary contendsthat the violation is willful, or at least serious, in nature.We reject the Secretary’s argument that the violationshould be classified as willful. The judge found that the violation was not willful, theSecretary did not seek review of that finding, and the issue was not directed for review.Accordingly, we would normally not reach the issue.[[8\/]] We note, in any event, that theargument is without merit. A violation is willful if \”it was committed voluntarilywith either an intentional disregard for the requirements of the Act or plain indifferenceto employee safety.\” United States Steel Corp., 12 BNA OSHC 1692, 1703, 1986-87 CCHOSHD ? 27,517, p. 35,675 (No. 79-1998, 1986); see Donovan v. Mica Construction Co., 699F.2d 431 (8th Cir. 1983). The facts of this case were stipulated, and nothing in thestipulation suggests that Amax acted with either an intentional disregard for therequirements of the Act or plain indifference to employee health. The Secretary bases thewillfulness allegation on the undisputed fact that Amax knew of the lead standard’smedical removal protection provisions. But an employer’s knowledge that a standard existsdoes not establish that the employer knew it was violating the standard. Amax did in factmaintain the hourly wage rate of the employees it removed, but it disputed whether thestandard also required it to maintain the existing levels of overtime compensation andpayments for lunch period. A violation is not willful if an employer has a good faithdifference of opinion with OSHA over what a standard requires. Keco Industries, 13 BNAOSHC 1161, 1169, 1986-87 CCH OSHD ? 27,860, p. 36,478 (No. 81-263, 1987).We also reject Amax’s argument that the judgeproperly classified the violation as de minimis. A de minimis violation is one which bearssuch a negligible relationship to employee safety or health as to render inappropriate theassessment of a penalty or entry of an abatement order. Cleveland Consolidated, Inc., 13BNA OSHC 1114, 1118, 1986-87 CCH OSHD ? 27,829, p. 36,429 (No. 84-696, 1987). We cannotsay that the hazard here was negligible. The lead standard relies on employees consentingto have their blood tested to determine their blood lead level. Blood testing providesearly detection of rising blood lead levels and triggers the medical removal of employeesbefore their blood lead level exceed a certain amount. See note 2 supra. The purpose ofmedical removal protection benefits is to eliminate an economic disincentive for employeesto consent to blood testing and to otherwise cooperate with the workplace medicalsurveillance program required under the lead standard. United Steelworkers of America v.Schuylkill Metals Corp., 828 F.2d at 322. Thus, the hazard addressed by the standard isnot negligible. See St. Joe Resources Co., OSHRC Docket No. 81-2267 (Apr. 27, 1989).We conclude that the violation is properly classifiedas serious. The serious health hazard presented by metallic lead is well established. TheMRP benefits provision attacks this hazard by removing barriers to complete employeecooperation with medical surveillance. It seeks to protect the employees who face thegravest risk of serious lead-related disease: those who have high blood lead levels andthose who have other medical conditions that would place them at particular risk shouldthey continue to be exposed to lead in the workplace. The standard also seeks to eliminatethe possibility that employees fearing economic loss due to removal from their jobs woulduse chelating drugs, which have dangerous side effects, in an attempt to reduce theirblood lead levels.See St. Joe Resources Co., supra. Since the potentialfor serious harm exists whenever the MRP standard is violated, we conclude that Amax’sviolation of the standard was serious.In determining an appropriate penalty, we find thatAmax acted in good faith to protect its employees from the adverse health effects of highblood lead levels. Of the six employees removed from work involving exposure to highairborne lead levels, only one had a blood lead level sufficiently high to requireremoval. Amax transferred the remaining five, and paid them at their normal hourly wagerate, even though their blood lead levels did not require medical removal. Amax didviolate the standard by not paying the removed employees for overtime, but that action wastaken under a good faith interpretation of the standard. We conclude that a penalty of $60is appropriate. DNormally, an order affirming a citation andestablishing a penalty assessment would be sufficient to dispose of the case. However,there is one additional contention that we must address. The Secretary and the Union arguethat the Commission should issue an order requiring Amax to pay the removed employees thespecific amounts that were due them but not paid.The Commission members are divided on the proprietyof such an order. While Chairman Buckley is of the view that the employees who failed toreceive full \”earnings\”, as that term has been interpreted by the Fifth Circuit,are entitled to be paid retroactively for the period of time that they failed to receivefull earnings, he is also of the view that the Review Commission is without authority tomake individual compensatory awards to those employees. Under the Occupational Safety andHealth Act (29 U.S.C. 651 et seq.), the Secretary is authorized to issue citations toemployers alleged to have violated the Act or any standard, rule or regulation promulgatedpursuant to the Act. The citation is required to specify the violation with particularity,and to prescribe a reasonable time for abatement. The Secretary must also notify theemployer of any penalty proposed to be assessed. That Act also created the OccupationalSafety and Health Review Commission and authorized it to hear cases brought before itinvolving safety and health violations, and to affirm, modify, or vacate the Secretary’scitation or proposed penalty, or to direct \”other appropriate relief\”. 29 U.S.C.? 659(c). The determination of the amount of pay to be awarded to an employee, and anorder providing for individual compensatory relief to an employee, is clearly not theassessment of a civil penalty (which would be paid into the Treasury of the UnitedStates). Nor is it an \”abatement\” as used in the Act, which he would define asthose actions required to terminate the violative condition. In this case, the failure topay full \”earnings\” would be abated by the commencement to pay them. Nor doesthe awarding of individual compensatory relief to individual workers retroactively forearnings which they failed to receive constitute \”other appropriaterelief\”[[9\/]] The ordering of back pay is not necessary as an abatement measure tothe termination of the violative condition. In Chairman Buckley’s opinion, the Commissionis without authority to make individual compensatory awards unless expressly so authorizedby Congress (as Congress has done, for example, in the case of awards of attorney’s feesand costs under the Equal Access to Justice Act).Chairman Buckley emphasizes that the Commission’slack of authority to issue backpay orders to compensate employees who failed to receivefull earnings does not leave the employees without a remedy. If the employers fail tocompensate them fully and retroactively, there are forums authorized to resolve suchdisputes. Chairman Buckley’s views on the Commission’s lack of authority to issue awardsof back pay should not be read as meaning that employees are not entitled to retroactivepay, only that the Commission is not the forum to award such pay. He agrees withCommissioner Arey that employees removed under the medical removal protection standard areentitled to continue to receive the full amount of remuneration that they were receivingbefore removal, whether that be contractual or voluntary overtime pay, productionincentive bonuses, or other pay differentials. He stops short of agreeing to consider whatthose amounts are as to each individual employee, or whether they also are entitled tointerest on the unpaid earnings.Commissioner Arey would remand to the judge tocalculate the amounts Amax improperly withheld under the terms of the medical removalprotection standard and to order Amax to pay those amounts. She believes that payment ofamounts improperly withheld is the abatement required when a violation of the MRP benefitsprovision of the standard is found, that ordering such payments is within the Commission’sauthority, and that such an order is generally appropriate to define the employer’sabatement obligation and avoid a potential failure-to-abate proceeding. See St. JoeResources Co., supra (separate views of Commissioner Arey).Official action can be taken on the affirmative voteof at least two Commission members. 29 U.S.C. ? 661(f). The Commission members both agreeto find that Amax committed a serious violation of the cited standard and assess a penaltyof $60. They are divided on the propriety of a \”backpay\” order, and thereforecannot issue such an order.Accordingly, the citation is modified to allege aserious violation of 29 C.F.R. ? 1910.1025(k)(2) and, as so modified, it is affirmed. Apenalty of $60 is assessed.\u00a0FOR THE COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARY DATED: April 27, 1989FOOTNOTES: [[1\/]] Insofar as is relevant here, the standard provides:?1910.1025 Lead(k) Medical Removal Protection(2) Medical removal protection benefits–(i) Provision of medical removal protection benefits. The employer shall provide toan employee up to eighteen (18) months of medical removal protection benefits on eachoccasion that an employee is removed from exposure to lead or otherwise limited pursuantto this section.(ii) Definition of medical removal protection benefits. For the purposes of thissection, the requirement that an employer provide medical removal protection benefitsmeans that the employer shall maintain the earnings, seniority and other employment rightsand benefits of an employee as though the employee had not been removed from normalexposure to lead or otherwise limited.[[2\/]] The lead standard requires that an employeewhose blood lead level exceeds a specified concentration be removed from a work area inwhich the ambient airborne concentration of lead exceeds a certain amount. Since theexpiration of the phase-in period during which higher concentrations were permitted, thestandard has required that an employee with a blood lead level at or above 50 ?g\/100g ofwhole blood be removed from work having a daily eight hour time-weighted-average exposureto airborne lead at or above 30 ?g\/m3. 29 C.F.R. ?1910.1025(k)(1)(i). [This case, however, arose during the phase-in period.] Thestandard also requires removal if a \”final medical determination\” establishesthat an employee has a \”detected medical condition which places the employee atincreased risk of material impairment to health from exposure to lead.\” 29 C.F.R. ?1910.1025(k)(1)(ii)(A).[[3\/]] In our initial decision in this case, and inthe appeal before the Fifth Circuit, this case was consolidated with St. Joe ResourcesCo., OSHRC Docket No. 81-2267, and Schuylkill Metals Corp., OSHRC Docket No. 81-856.Because the cases no longer involve a single common legal issue, they are hereby severedpursuant to Commission Rule 10, 29 C.F.R. ? 2200.10.[[4\/]] We must apply the Fifth Circuit’sinterpretation as the \”law of the case.\” See In re Progressive Farmers Ass’n,829 F.2d 651, 655 (8th Cir. 1987), cert. denied sub nom. South Central Enterprises v.Farrington, 108 S. Ct. 1574 (1988). In another decision issued today, East PennManufacturing Co., OSHRC Docket No. 87-537 (Apr. 27, 1989), we have overruled theCommission’s decision in Amax and aligned the Commission’s interpretation of the medicalremoval protection provision with that of the Fifth Circuit in United Steelworkers ofAmerica v. Schuylkill Metals Corp.[[5\/]] The Fifth Circuit said that paid lunch periodsmay be included in the payments and benefits that employees are entitled to receive underthe standard. 828 F.2d at 320-22 & n. 4. However, we read this language to beconsistent with the remainder of the court’s decision, which focused on assuring thatemployees suffer no economic loss. As noted in the text, the court approved theSecretary’s interpretation, which states that employees must receive the compensation theywould have earned if not removed. The court also relied on the standard’s preamble, whichit found demonstrated a \”near obsession that workers sustain no ‘economic loss’because of removal ……..\” Id. at 322. Accordingly, we read the court’s opinion torequire employers to compensate a removed employee for paid lunch periods when failing todo so would reduce the employee’s total compensation. We do not read either the court’sopinion or the standard to require employers to pay employees more than they would haveearned if not removed.[[6\/]] Because she rejects each of the argumentseither on its merits or by applying the law of the circuit, Commissioner Arey finds itunnecessary to consider the arguments of the parties directed to the Commission’sauthority to rule on validity challenges, the argument that Amax’s challenge is barred bycollateral estoppel, and Amax’s contention that the Secretary untimely raised thecollateral estoppel issue.[[7\/]] The cited workplace and Amax’s principal placeof business are located in Missouri, which is in the Eighth Circuit. Although this casewas previously appealed to the Fifth Circuit, that court only had jurisdiction becausethis case was consolidated with another case that arose in the Fifth Circuit. The caseshave now been severed, and they must be appealed separately wherever jurisdiction lies.[[8\/]] Commission Rule 92(a), 29 C.F.R. ?2200.92(a), provides:? 2200.92 Review by the Commission.(a) Jurisdiction of the Commission;Issues on review. Unless the Commission orders otherwise, a direction for reviewestablishes jurisdiction in the Commission to review the entire case. The issues to bedecided on review are within the discretion of the Commission but ordinarily will be thosestated in the direction for review, those raised in the petitions for discretionaryreview, or those stated in any later order.[[9\/]] In RSR Corp. v. Donovan, 733 F.2d 1142 (5thCir. 1984), the court adverted to, but did not discuss or define, \”other appropriaterelief\” in the one instance in which the Commission has issued what amounted to aretroactive pay order: the Commission ordered a remand of certain cases for adetermination of the amount of medical removal protection benefits due the employees.However, the Commission had not said that it was ordering \”other appropriaterelief;\” in fact, the Commission did not give any attention to what authority it hadto issue such an order. RSR Corp, 83 OSAHRC 6\/A2, 11 BNA OSHC 1163, 1983-84 CCH OSHD ?26,429 (No. 79-3813, 1983). The court’s reference to that term has little application heresince the court was addressing only whether the Commission’s decision was a final orderfrom which the employer could appeal. Despite the remand for determination of benefitsdue, the employer wanted court review of the foundational portions of the Commissiondecision — the Commission’s affirmance of the underlying citations and penalties. TheSecretary moved to dismiss the appeal on the ground that the Commission’s decision was notfinal. On this the court replied, \”Only a crabbed reading of section 10(c) [29 U.S.C.? 659(c)] would forbid review of an order that affirmed in part and modified in part bothcitations and penalties simply because the issue of what other (and additional) relief isappropriate has been remanded for determination.\” 733 F.2d at 1144. The court deniedthe Secretary’s Motion to Dismiss. Whether the Commission had authority to orderretroactive pay was not before the court, and the court gave the question no attention.Accordingly, Chairman Buckley declines to assign to the court’s decision authority for theCommission to make individual compensatory awards.”