“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONSECRETARY OF LABOR,Complainant,v.BAY STATE REFINING COMPANY. INC.,Respondent.Docket No. 88-1731*_DECISION _*BEFORE: FOULKE, Chairman. WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:This case arose out of an inspection of a brass and bronze ingotmanufacturing facility operated by Respondent, Bay State RefiningCompany (\”Bay State\”), in Chicopee, Massachusetts. The Secretary,through the Occupational Safety and Health Administration (\”OSHA\”),cited Bay State for alleged violations of 29 C.F.R. ?? 1910.1000,1910.1025, and 1910.95, standards dealing with exposure of employees tocopper dust, exposure of employees to lead, and protection of employeesfrom excessive noise levels. Administrative Law Judge Paul A. Tenneyaffirmed all of the citation items before him.The Commission requested the parties to submit briefs in two issues. Thefirst issue is whether the Secretary established Bay State’s employeeswere exposed to lead within the meaning of 29 C.F.R. ? 1919, whichdefines \”lead\” means metallic lead, all inorganic lead compounds, andorganic lead soaps. Excluded from this definition are all other organiclead compounds. Second, we requested briefs on whether definition areall other organic lead compounds. Second, we requested briefs on whetherthe judge erred in concluding, that Bay State’s violation of 29 C.F.R. ?1025(i)(3)(i), which requires the employer to \”assure that employees whowork in areas where their airborne exposure to lead is above the[permissible exposure limit] . . . shower at the end of the work shift,\”was willful in nature. For the reasons that follow we conclude that BayState’s employees were shown to be exposed to metallic lead or inorganiclead compounds. We decline to reach the second issue on which briefswere requested on the ground that Bay State has exhibited no interest inreview on the question of the characterization of the violation of 29C.F.R. ? 1025 (i)(3)(l) [[1]]*FACTS *Bay State’s employees process nonferrous, i.e., non-iron-bearing, scrapmetal. The scrap is first sorted and then compressed into blocks, anoperation known as \”briquetting.\” The blocks are then put into a furnacewhere they are melted and the resultant material is poured into ingotmolds. The ingots, that come out of these molds are sold to Bay State’scustomers, principally nonferrous foundries. Edward Powers, Bay State’sPlant Manager, described Bay State’s business as that of a brass andbronze ingot manufacturer.Compliance officer WilIiam Hargraves conducted an inspection. Hargravesis it senior industrial hygienist for OSHA, who has a masters degree inpublic and environmental health and also has prior experience workingwith the lead standard as a hygienist in private industry before joiningOSHA. He has conducted twenty-five to thirty inspections involvingexposure to metal particulates. Victor O’Brien, Assistant PlantSuperintendent for Bay State, informed Hargraves that one of Bay State’susual products. Product 125, contained 6 to 8 percent lead. At the timeof the inspection, Product 125 was being produced two to three times aweek. Hargraves took air samples of a number of Bay State’s employeesduring the time that Product 125 was being produced. The OSHA laboratoryanalyzed these samples for thirteen different metals including lead. Thetest results showed that Bay State’s employees were exposed to lead inconcentrations well above the permissible exposure limit (\”PEL\”) of50?g\/m^3 specified in 29 C.F.R. ? 1910.1025(c).Hargraves testified that organic lead essentially consists of moleculescontaining lead combined with carbon and hydrogen. Inorganic lead iscomprised of the element lead or oxide compounds of lead without anycarbonaceous material. Organic lead has less \”general\” lead content thaninorganic lead. Although the OSHA laboratory analyses. admitted intoevidence, state that the samples were analyzed for \”lead: inorganicfumes and dust,\” Ray Abel, the chemist in the OSHA laboratory whosupervised the analysis of the samples, testified that the test resultsdid not indicate what percent of each sample was organic and whatpercent was inorganic. When asked what conclusions could be drawn fromthe sampling results. Abel was equivocal:Q. Now. can you tell from the figures that were generated, the figuresthat were reported, that you’ve analyzed. how much metallic lead was inany of the samples?A. Yes. sir.Q. How much?A. In the one we just talked about. 44331, it was 0.0971 milligrams percubic meter.Q. Now. can you tell us in that sample how much of that lead was lead soap?A. It’s all elemental yes.Q. Can you tell how much was organic as compared to how much was inorganic?A. No, sir.Q. Can you tell how much was metallic as compared to how much wasnonmetallic?A. Yes.Q. How much?A. Well, all the metallic was listed.Melvin Cassady, the director of OSHA’s Health Response Team, whichassists employers in assessing and implementing engineering controls forair contaminants, conducted a discovery inspection of Bay State’sfacility to determine the feasibility of engineering controls. Duringthis inspection, Cassady observed Bay State’s employees processing scrapobjects such as automobile radiators, wiring, fittings, and plumbing.Hargraves further testified that he determined that the airborne lead hesampled at Bay State’s plant was inorganic by observing the materialbeing processed. He noted, \”[i]t was not a soap or a material thatindicated anything but inorganic lead.\”*DISCUSSION AND ANALYSIS**A. Nature of the Lead in Bay State’s Workplace*The judge noted that Cassady had mentioned the several sources of scrapused by Bay State (radiators, wiring, fittings, and plumbing) and thatHargraves had testified that this type of material would containinorganic lead. Based on Hargraves’ testimony, the judge found that\”[t]here was lead in the air, and the lead was inorganic. It wasmetallic; it was not a soap or other organic material.\” The judge didnot mention Abel’s testimony. Bay State contends, in essence, that thejudge’s decision is contrary to the evidence because the judgedisregarded Abel’s testimony. We disagree.Chemist Abel’s testimony is at best equivocal and clearly does notestablish that the lead detected in the samples was inorganic ormetallic lead. Conversely, however, Abel’s testimony fails to show thatthe lead was not of the type that would come within the standard. Themost that can be deduced from his testimony is that the sampling resultswere not conclusive on the question of what type of lead was detected.However, hygienist Hargraves gave his opinion that the type of objectsbeing processed were consistent with inorganic lead. Hargraves’qualifications show that he has some expertise in dealing withindustrial lead exposure. Generally speaking, the opinion testimony of aqualified non-expert witness is entitled to weight if not rebutted. SeeStanBest, Inc., 11 BNA OSHC 1222, 1227, 1983-84 CCH OSHD ? 26,455, p.33,620 (No. 76-4355, 1983). Bay State presented no evidence of its ownto rebut Hargraves testimony. As the Commission held in AnacondaAluminum Co., 9 BNA OSHC 1460, 1981 CCH OSHD 25,300 (No. 13102, 1981),an employer who contends that the Secretary’s air samples containsubstances in addition to the particular air contaminant in questionmust do more than merely raise the suggestion that the laboratoryresults may not properly reflect the employees exposure to the regulatedsubstance. [[2]] Rather, once the Secretary, as in this case, hasintroduced evidence that the contaminant in question was present in thework area, the burden shifts to the employer to present evidence of itsown showing that some other substance is present in sufficient quantityto render the Secretary’s measurements unreliable Id. at 1465, 1981 CCHOSHD at p. 31,338. In the absence of any such evidence from Bay State,the record clearly supports Judge Tenney’s finding that Bay State’semployees were exposed to metallic or inorganic lead within thedefinition at ? 1910.1025(b). [[3]] Furthermore, when OSHA promulgated the lead standard, it determined, after extensive fact finding, that operations of the type conducted by Bay State expose employees to metallic or inorganic lead. Originally, OSHA regarded the brass and bronze ingot industry as part of the nonferrous foundry industry. In the preamble to the lead standard, OSHA stated that brass and bronze , (i.e. nonferrous) foundries exposed employees to inorganic or metallic lead: The lead content of copper-based alloys, i.e. brass and bronze, may amount to as much as 20 percent by weight of the metal core. The lead content of copper based ingots averages 5 percent. …. Exposure to airborne lead results from insufficient control of fumes from the melting and pouring of alloys. In copper-base alloy foundries, approximately 15 percent of the particulate matter … from the melting of red and yellow brass is lead oxide…43 Fed. Reg. 52,980 (1979) (Citations omitted). [[4]]In accordance with a remand order of the Court of Appeals for theDistrict of Columbia in United Steelworkers v. Marshall, 647 F.2d 1189(D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981), OSHA conductedadditional rulemaking proceedings to determine whether the requirementof ? 1910.1025(e)(l) that employers implement engineering or workpractice controls to meet the PEL of 50?g\/m^3 , [[4]] was feasible forcertain industries, including nonferrous foundries. OSHA subsequentlyreaffirmed its original findings that compliance with this exposurelevel was feasible and issued a supplemental statement of reasons insupport of that conclusion. 54 Fed. Reg. 29,142 (1989). In thissupplementary statement OSHA identified \”brass and bronze ingotproduction\” as a separate industry. OSHA described the relationshipbetween smelting, brass and bronze ingot manufacture, and nonferrousfoundry work as follows:The similarities between brass and bronze ingot production, secondarycopper smelting and non-ferrous foundries are substantial. Ingotproduction is like secondary copper production in its scrap preparationand like non-ferrous foundries in its furnace and pouring operations. Inaddition, as discussed below, facilities in each of thesepyro-metallurgical sectors have many operations and procedures in common.Like copper smelting, ingot production involves copper-based scrap,typically containing a substantial amount of lead, as the raw material,and depends upon refining to produce the finished product. Unlike coppersmelting, ingot production does not involve smelting and therefore doesnot entail the high exposure levels associated with blast furnaces. Inaddition, unlike copper smelting the refining process in Ingotproduction is not aimed at removing all metals, like lead, to produceincreasingly pure copper. Rather, the purpose in ingot production is toremove only those contaminants that do not meet particular alloyspecifications. In these aspects, ingot production, as industryconcedes…is similar to the process used by non-ferrous foundries thatproduce lead-containing alloy castings. Indeed, allow ingots are theprimary raw material for the non-ferrous foundry industry. In bothindustries lead is present throughout the production of leaded alloys,and therefore the potential for lead exposure exists in nearly everyoperation, and is especially great in hot operations.\/Id\/. at 29,154 (citation omitted). Specifically with response to brassand bronze ingot manufacturers, OSHA stated:Raw materials used by brass and bronze ingot producers include a widevariety of copper-bearing scrap, such as faucets, automotive radiators,electrical cable and machinings. Typically, the lead content of thescrap varies. The lead content of the most common types of ingotsproduced is 5-7% (e.g., leaded red brass and semi-red brass). In somebrass and bronze ingot producing facilities, no more than 20% of totaltonnage is in high lead alloys (25% lead), which means that 80% of theirtonnage is comprised of low-lead or unleaded alloys.\/Id\/. at 29,150.These findings clearly and unmistakably constitute a determination bythe Secretary that the industries addressed in the rulemaking record,including the brass and bronze ingot manufacturingindustry use lead in ametallic or inorganic form. [[5]] See Advance Bronze, Inc. v. Dole, 917F.2d 944,951 (6th Cir. 1990) (citing the supplementary statement asauthority for its conclusion that the lead standard applies to thenonferrous foundry industry). We recognize, as did OSHA in itsrulemaking determinations, that the actual lead content of the materialbeing processed by brass and bronze ingot manufacturers constantlyvaries and that some material may have no lead content whatever.However, Hargraves testified that he was informed that there was lead inthe product Bay State was manufacturing at the time of the inspection,and Bay State presented no contrary evidence. We interpret OSHA’sstatements quoted above as establishing that ingot producers processscrap metal or metallic alloys; thus, while the materials may not alwaysbe lead-bearing, when lead is present, it will likely be metallic orinorganic in nature.Considering the evidentiary record in this case together with therulemaking history of the lead standard, we find no basis on which todisturb the judge’s conclusion that Bay State’s employees were exposedto metallic or inorganic lead within the definition at ? 1910.1025(b).*B. Willfulness Issue*Judge Tenney found that Bay State did not require the employees exposedto lead in excess of the PEL to take showers at the end of their workshift and that its reason for failing to impose such a requirement wasits view that showering was a matter of an individual employee’spersonal choice. The judge concluded that by substituting its own policyof employee preference for the mandatory requirement of 29 C.F.R. ?1910.1025(i)(3)(i). Bay State intentionally disregarded the provisionsof the standard and therefore had committed a willful violation.It is well-settled that a willful violation is one committed voluntarilywith either an intentional disregard of the requirements of the Act or aplain indifference to employee safety. E.L. Jones & Son, 14 BNA OSHC2129, 2113, 1991 CCH OSHD ? 29,264. p. 39,232 (No 87-8 1991). The issueof willfulness focuses on the employer’s state of mind and requiresproof of a greater degree of culpability on the part of the employerthan simple knowledge or awareness of hazardous conditions that is aprerequisite for any violation. Carabetta Enterp.. No. 89-2007, slip op.at 7 (Dec. 18, 1991): Williams Enterp., 13 BNA OSHC 1249, 1256-57,1986-87 CCH OSHD ? 27,893, p. 36,589 (No. 85-355, 1987). In its trialbrief before the judge. Bay State argued both that it had not violated29 C.F.R. ? 1910.1025(i)(3)(i) in the first instance and also that if aviolation had occurred, the heightened degree of culpability necessaryfor willfulness to be established did not exist. In our briefing notice,we requested the parties to brief the issue of whether the judge erredin finding the violation to be willful. In response, Bay State disputedthe merits of the violation itself, arguing that for a number of reasonsthe judge erred in finding that it had failed to comply with the citedstandard. Bay State did not present any argument regarding thecharacterization of the violation; that is, Bay State failed to addressthe critical element of its state of mind or attitude toward employeesafety. We interpret Bay State’s silence on this point in its reviewbrief after having previously argued willfulness to the judge as anindication that it has abandoned the issue of whether the violation waswillful in nature. StanBest, 11 BNA OSHC at 1224-25 n.4. 1983-84 CCHOSHD at p. 33,618. Accordingly, we will not address the question ofwhether the judge erred in finding the violation of 29 C.F.R. ?1910.1025(i)(3)(i) to be willful In nature. See Georgia-Pacific Corp.,15 BNA OSHC 1127, 1130, 1991 CCH OSHD ? 29,397. p. 39,576 (No. 89-2713,1991) (Commission declines to address issues on which the aggrievedparty indicates no interest).*C. Other Issues*We also decline to address Bay State’s contentions regarding the meritsof the violation of 29 C.F.R. ? 1025(i)(3)(i). While the Commission hasauthority to consider any issues raised in a case directed for review.Hamilton Die Cast, Inc., 12 BNA OSHC 1797, 1986-87 CCH OSHD ? 27,576 No.83-308, 1986), the Commission at the same time has discretion to limitthe scope of its review. Pennsylvania Steel Foundry & Machine Co. 12 BNAOSHC 2017, 2019 n.3, 1986-87 CCH OSHD ? 27,671, p.36,063 n.3 (No.78-638, 1986), aff’d, 831 F.2d 1211 (3d Cir. 1987). Bay State’sarguments that the judge erred in affirming the violation of 29 C.F.R. ?1910.1025(i)(3)(i) raise factual matters that the judge addressed in hisdecision. We conclude that they do not warrant review. See DoverElevator Co., 15 BNA OSHC 1378, 1378 n.2 1991 CCH OSHD ? 29,524, p.39,846 n.2 (No. 98-2642, 1991). [[6]]For the reasons stated above the judge’s decision is affirmed.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: January 17, 1992————————————————————————IN THE MATTER OF:ELIZABETH DOLE, SECRETARY OF LABOR,Complainant.v.BAY STATE REFINING CO., INC.,Respondent.Docket No. 88-1731 APPEARANCES:JOHN S. CASLER, ESQUIREU.S. Department of LaborFor the Complainant,ROBERT D. MORAN, ESQUIRECooter and GelFor the Respondent,_*DECISION AND ORDER*_JUDGE TENNEY*_PROCEDURAL BACKGROUND_*This proceeding arises under the Occupational Safety and Health Act of1970 (29 U.S.C. Section 651 et seq.; hereinafter referred to as the\”Act\”). Pursuant to a search warrant, Mr. Hargraves, an OccupationalSafety and Health Administration (hereinafter OSHA) Compliance Officer,inspected the Respondent’s foundry in Chicopee, Massachusetts. Mr.Hargraves returned to the worksite several times in conducting theinvestigation and testing for exposure to lead. As a result of theinvestigation, the Respondent was issued with three citations, eachcontaining multiple items. Citation No. 1 was classified as \”Serious\”,and contained six items; a total proposed penalty of $3,740 wasassessed. [[1]] Citation No. 2 was classified as \”Willful\”, andcontained two items; a total proposed penalty of $16,000 was assessed.Citation No. 3 was classified as \”Other than Serious\”, and containedeight items with no penalty assessments. [[2]]Bay State filed a timely notice of contest. After the filing ofpleadings and the conduct of some discovery, a hearing was held onOctober 23 through 25, 1989, in Springfield, Massachusetts. Initialpost-hearing briefs were filed and considered. In response to aninvitation, the Secretary filed a reply brief which was considered; theRespondent declined to file a reply brief.*_A. Reasonable Promptness_*The Respondent contends that the citations were not issued in accordancewith the Act or the applicable rules adopted thereunder. Respondentargues that the term \”reasonable promptness\” at 29 U.S.C. ? 658(a) means72 hours from the time the violation is detected by the inspector. [[3]]Respondent asserts that the latest date of. alleged noncompliance wasApril 21, 1988, but the citation was issued on June 29, 1988. Thus,since the citations were issued beyond the 72-hour-time period, then thecitations must be vacated. The argument must fail for the following reasons.Regardless of delay in issuance, up to the six-month statute oflimitations in ? 9(c) of the Act, a citation will not be vacated unlessthe employer was prejudiced to the delay. [[4]] See _Chicago Bridge &Iron Co. v. OSHRC_, 535 F.2d 371, 4 BNA OSHC 1181 (7th Cir. 1976),Coughlan Construction Company. Inc., 3 BNA OSHC 1636 (Nos. 5303 and5304, 1975). The Respondent does not allege prejudice as a result of thecitations being issued in June. Unless the delay impaired an employer’sability to prepare and present a defense, the citation was deemed tohave been issued in accordance with ? 9(a) of the Act. Stripe-A-Zone,Inc., 10 BNA OSHC 1694, No. 79-2380, 1982).*_B. Requests for Admissions_*The Respondent filed a number of requests for admissions to theSecretary. It relies heavily on its requests for admissions to supportits case. First, it argues that the requests for admissions were timelysince they are not a discovery device and therefore not bound by theestablished prehearing discovery schedule. Second, it argues because theSecretary did not respond adequately, the requested responses must beconsidered admitted. The arguments are unpersuasive._Wright and Miller_ notes that requests for admissions are \”strictlyspeaking\” not a discovery procedure. [[5]] The Respondent takes thatstatement one step further and contends that the requests for admissionsare not a discovery device within the scope of my January 18, 1989,order which closed discovery. I disagree. The Commission’s rulescontrol. The Commission rules specifically refer to requests foradmissions as a discovery device at Rule 52(a)(l)(ii). [[6]]Respondent’s requests for admissions were served on May 12, 1989. Undermy order of January 18, 1989, the time for discovery had been closed onApril 15, 1989. I reiterated the date discovery was closed in my April26, 1989, order. [[7]] Thus, the requests for admissions were untimelyas the period of discovery had been closed. Moreover, the Complainantserved denials to the requests under Commission Rule 54(b)(2). Thedenials are in any event sufficient.Also, Respondent never applied for relief to determine the sufficiencyof the responses. Further, if the Respondent had timely objected totheir sufficiency, there has been no burden sustained in justificationof the objection. [[8]]*_C. Whether the Lead Standard Applies to Bay State Foundry_*The Respondent argues that the entire lead standard is inapplicable. Therespondent is mistaken.On November 14, 1978, OSHA published the lead standard that is publishedat 29 C.F.R. section 1910.1025 which limited occupational exposure toairborne concentrations of lead to 50 ?g\/m^3 (micrograms of lead percubic meter of air). 43 Fed. Reg. 53,007 (1978); _United Steelworkers ofAmerica. AFL-CIO-CLC v. Marshall_, 647 F.2d 1189, 1202 (1980). Employerswere required to achieve the \”permissible exposure level\” (hereinafterPEL) of 50?g\/m^3 by means of engineering and work practice controls.However, in the _Steelworkers_ decision there was a stay placed on ?1910.1025(e)(1) in the nonferrous foundries.The Respondent argues that there is nothing in the _Steel-workers_decision holding that _any_ of the lead standard in issue areenforceable for the nonferrous foundry industry, of which the Respondentis a member. (Respondent’s Brief, p. 15). The lead standard in issue waspublished at 29 C.F.R. 1910.1025 limiting occupational exposure toairborne concentrations of lead to 50 ?g\/m^3 (micrograms of lead percubic meter of air).43 Fed. Reg. 53,007.At the time of the _Steelworkers_ opinion the parties were operatingunder a partial stay issued on March 1, 1979. See 647 F.2d at 1311. Inthat Order the Court stated: On consideration of the papers filed by the parties, and the discussions at conference, a partial stay of the standard will be ordered. The objective of the stay is to defer the requirements that employers undertake the expense of engineering controls, revision of work practices, and construction of facilities pending determination of their challenge to the standard. At the same time, the Court has concluded that portions of the standard which will provide protection to employees during the pendency of judicial review should go into effect, as set forth in the order.The March 1 Order, as subsequently amended at 647 F.2d at 1311, is theonly \”stay\” applicable to the lead standard. That stay was sharplymodified in _Steelworkers_: We remand the record to the Secretary of Labor for reconsideration, in the light of this opinion, of the feasibility of the standard for the industries listed in the previous paragraph. The Secretary shall return the record on the feasibility of the standard for these industries, with sufficient evidence and fuller explanation, within six months of the issuance of this opinion. In the interim one portion of our March 1, 1979 partial stay of the lead standard shall remain in effect: For those industries listed in the previous paragraph _the stay of Section 1910.1025(e)(l) of the standard, which requires compliance with the PEL by engineering and work practice controls, shall remain in effect._ These industries, however, shall be immediately required to meet the PEL of 50 ?g\/m^3 by some combination of engineering, work practice, and respirator controls. _All other provisions of the March 1, 1979 partial stay are hereby lifted_… (Underscoring added). 647 F.2d at 1311.As to the issue of engineering controls, which is the subject of section1910.1025(e)(l), the original stay stated that: (3) The motion to stay the application of 29 C.F.R. 1910.1025(e)(l), which provides for compliance by engineering and work practice controls, is granted. During the period of this stay respondent’s present lead exposure standard, 29 C.F.R. section 1910.1000, Table Z-2, shall remain in effect. The motion to stay the application of 29 1910.1025(e)(2), which provides for respiratory protection, is denied except that the reference to paragraph (f) shall incorporate only those portions of that paragraph not stayed by this order. The provisions of 29 C.F.R. 1910.1025(e)(3), governing written compliance programs, are stayed except for paragraph (f). The remaining portions of 29 C.F.R. 1910.1025(e) are stayed.This aspect of the stay as to engineering controls was continued in_Steelworkers_. For those industries listed in the previous paragraph the stay of Section 1910.1025(e)(l) of the standard, which requires compliance with the PEL by engineering and work practice controls, shall remain in effect. _These industries, however, shall be immediately required to meet the PEL of 50 ?g\/m^3 by some combination of engineering, work practice, and respirator controls._ _All other provisions of the March 1, 1979 partial stay are hereby lifted_… (Underscoring added). 647 F.2d at 1311.Further, read together, the March 1, 1979, Order and the _Steelworkers_decision establish that (l) all parts of section 1910-1025, exceptparagraph (e), are in full force and effect, and (2) as to engineeringcontrols, the level of 200 ?g\/m^3 , taken from 29 C.F.R. 1910-1000,Table Z-2, judicially mandated to remain in effect.Also, the Secretary’s position regarding engineering controls is notsolely a litigation position taken in this case. The same interpretationformed the subject of contemporaneous rulemaking. See the interpretationpublished at 46 Fed. Reg. 60,758 (Dec. 11, 1981). Moreover, to construethe standard differently would have afforded less protection withrespect to engineering controls than existed before the adoption of therevised lead standard in 1978. There is no indication that such a resultwas intended by the Secretary in his rulemaking or the D.C. Circuit in_Steelworkers_.In short, Secretary’s interpretation is entitled to deference. The leadstandard at 29 C.F.R. ? 1910.1025, except paragraph (e)(1), was in fullforce and effect. Also, as to engineering controls, the level of 200?g\/m^3 , taken from 29 C.F.R. 1910.1000, Table Z-2 is considered to bejudicially and administratively mandated to remain in effect. Finally,under _Steelworkers_ the Respondent is plainly required to meet a PEL of50 ?g\/m^3 by some combination of engineering, work practice, andrespirator controls.The Respondent also argues that the lead standard does not apply becausethe Secretary did not establish the presence of airborne lead inRespondents workplace. (Respondent’s Brief, p. 17). Mr. Melvin E.Cassady, a Senior Industrial Hygienist with OSHA, testified that he hadexperience with \”lead scrap\”, and that although he could not identifythe type of scrap which was used at Bay State, it probably came from avariety of sources, such as radiators, wiring, fittings, and plumbing.There was lead in the air, and the lead was inorganic. It was metallic;it was not a soap or other organic material. Testimony of Mr. Hargraves(Tr. 146)._*D. The Validity of 29 C.F.R. ? 1910.1000*_The Respondent argues the standard at 29 C.F.R. section 1910.1000 isinvalid as to copper. The Respondent presents four arguments. First,there was no copper standard in effect at the time of the section 6(a)promulgation. Second, the Walsh-Healey source standard did not set a TWA(Time Weighted Average) for copper exposure. Third, OSHA made asubstantive change in its May 1971 publication pursuant to section 6(a),when it first published 1910.93 with a reference to the 1970 ACGIHTLV’s. Fourth, the source standard had undergone numerous changes in theabsence of required notice and public procedure in rulemaking.The arguments lack persuasion. In analyzing the standard the focus is onwhether there are significant differences in language between the sourcestandard and the OSHA standard. _Deering Milliken, Inc., Unity Plant v.OSHRC_, 630 F.2d 1094, 9 BNA OSHC 1001 (5th Cir. 1980) (validity of1910.1000). OSHA is not required to promulgate verbatim the sourcestandards. Rather, the proper inquiry is whether the Secretary madesubstantial modifications in the source standard.The Secretary had under the Walsh-Healey Public Contracts Acteffectively incorporated by reference the 1968 American Conference ofGovernment Industrial Hygienists (ACGIH) document which establishedthreshold limit values (TLV’s) for numerous airborne contaminantsincluding copper dust. 40 C.F.R. 50-204.50. The Walsh-Healeyincorporation fully complied with the Federal Register rules forincorporation by reference published at that time at 1 C.F.R. 20.10 -.12. After an initial mistaken publication of a reference to 1970 ACGIHvalues, a correction was made to show the 1968 values. 36 Fed. Reg.15,101 (Aug. 13, 1971).Thus, the 1968 ACGIH values were successfully incorporated into thestandard. The ACGIH document specifically stated that all of the levelscontained therein, unless notated with a \”C\”, are TWA’s or time-weightedaverage threshold limit values. The level for copper dust is a TWA.But Respondent argues that OSHA made a substantive change when in May1971 pursuant to section 6(a) of the Act it initially published areference to the 1970 ACGIH TLV’s. As noted above, the reference wascorrected in August 1971 when section 2920.93 was \”revised in itsentirety in the interest of greater intelligibility and accuracy.\” 39Fed. Reg. 25,101 (Aug. 13, 1971). At that time, OSHA republished the1968 ACGIH values, and corrected its mistaken reference to the 1970ACGIH document. The Secretary is not foreclosed from correctinginadvertent administrative errors without including advance notice andpublic procedure in his rulemaking._American Trucking Associations, Inc.v. Frisco Transportation Co._, 358 U.S. 133, 145 (1958).Another series of Respondent’s arguments is based on the fact that thetext of section 1910.1000 is different from that contained in 41 C.F.R.50 – 204.50(a). Respondent specifically points to three changes which itbelieved are significant: (a) in lieu thereto states \”shall not beexceeded,\” thereby changing a TLV into a time-limited PEL; (b) section1910.1000 omits the protective equipment \”option\” provided in 41 C.F.R.50-204 by dropping an \”or\” and (c) section 1910.1000 compounds theprotective equipment omission only dropping the \”by inhalation, inquestion etc.\” text.None of these changes are substantive modifications. _Deering Milliken_9 DNA OSHC at 1008. See also _Bunge Corporation_, 1986 CCH OSHD Par.27,565 (Rev. Com. 1986) at 35,804; _Smith Steel Casting Co._, 1988 CCHOSHD Par, 28,110 (ALJ).*E. _Hearsay_*The Respondent argues error in the admission and reliance upon theout-of-court statements made by its former Assistant PlantSuperintendent, Mr. Victor O’Brien and its Plant Manager, Mr. Ed Powersto the Compliance officer as inadmissible hearsay. See Respondent’sBrief pages 98, 99, 136.The statements by both Mr. O’Brien and Mr. Powers were admissions andtherefore not hearsay. [[9]] Both Mr. O’Brien and Mr. Powers heldsupervisory positions within Bay State and were responsible for theproduction operations which are the subject of the violations citedherein. Mr. O’Brien’s position of responsibility is particularlyevidenced by his participation in the opening and closing conferences,and the walkaround inspection as an authorized representative of Bay State.*F. _Specific Findings of Fact and Conclusions of Law_*1. Respondent, Bay State Refining Co., Inc., (hereinafter Bay State) isa corporation with a principal place of business at 8 Montgomery Street,Chicopee, Massachusetts.2. Bay State is within a nonferrous industry engaged in the operation ofsecondary smelting and the manufacture of brass and bronze ingots. TheCommission has jurisdiction because Bay State utilizes tools, equipment,machinery, materials, goods and supplies which have originated in wholeor in part from locations outside the state of Massachusetts.(Pleadings). Thus, Bay State is an employer engaged in a businessaffecting commerce within the meaning of section 3(5) of the Act, 29U.S.C. ? 652(5).3. Mr. Hargraves. an OSHA compliance officer, conducted the inspectionof Bay State’s workplace pursuant to a search warrant between April 12,1988, and June 8, 1988. The compliance officer was accompanied by BayState’s Assistant Superintendent O’Brien. (Tr. 66, 72). Bay State hadbetween 30 and 35 employees at the foundry. As a result of theinspection, Bay State was issued Serious Citation No. 1, WillfulCitation No. 2, and Other Citation No.3.4. Serious Citation No. 1 deals with employee excessive exposures tocopper dust, an air contaminant listed in Table Z-1 of 29 C.F.R. ?1910.1000 (a) (2) and exposure to excessive lead under 29 C.F.R. ?1910.1025. The main sources of exposure in ingot production are dustemitted during sorting, briquetting of scrap and fumes emitted duringcharging of the furnace and other operations.5. In order to determine the level of exposure in each of the instances,the compliance officer obtained airborne samples. These samples were inturn sent by certified mail to the Occupational Safety and HealthLaboratory in Salt Lake City. Testimony of Mr. Abel (Tr. 246).6. The air contaminant samples were picked up at the post office by alaboratory aide; delivered to the laboratory where they were handledunder careful standard operating procedures culminating with the entryof the test results on the form 91B’s. Testimony of Mr. Abel (Tr.232-242; 252-253). The testing was a technique known by its acronym ofICP, Inductively Coupled Plasma, done with an atomic emissionspectrophotometer. (See Complainant’s Ex. 14).7. Respondent argues that there is no assurance that proper procedureswere followed. But there is not evidence that proper procedures were notfollowed. What we have is evidence of routine practice by the testinglaboratory which is relevant in proving the conduct of that organizationin the testing of the Bay State samples.*SERIOUS CITATION NO. 1*_Item 1(a) and Item 1(b)alleged violation of 29 C.F.R. _?_1910.1000(a) (2) and 29 C.F.R._?_1910.1000 (e) _8. Item 1(a) alleged three instances of an overexposure to copper dustin violation of 29 C.F.R. ? 1910.1000 (a) (2). The compliance officerobserved three employees preparing scrap for processing in respondent’sfurnaces. The employees were the Logeman Briquette Operator, the D&JBriquette Operator and the Sorter at the composition table, testingrevealed PEL’s of 8.61 ?g\/m^3 , 2.23 ?g\/m^3 , and 2. 55 ?g\/m^3respectively. Testimony of Mr. Hargraves (Tr. 121-127; Complainant’s Ex. 3).9. Mr. Hargraves described the duties of the three affected employees.The Logeman Briquette Operator places the automotive radiators into thebriquette machine. (Complainant’s Ex. 2, Photos taken April 13, 1988,Frames 16-18; Photos taken May 31, 1989, Roll 1, Frames 2-6). Theoperator activates the cycle of the briquette machine to compress theautomotive radiator into a 14-inch block of scrap material. He thenloads the radiator into the briquette machine, walks over to theoperating panel, cycles the machine and returns to the ejection area,takes the block and stacks it. (Tr. 121-2). The exposures to lead andcopper occurred when the automotive radiators are handled in threeplaces during this operation: (1) when the scrap is put into themachine; (2) when the scrap is removed from the ejection area; and, (3)when the scrap is stacked onto the pallet. Testimony of Mr. Hargraves(Tr. 122).10. The D&J Briquette Operator has duties similar to the LogemanBriquette Operator, although there is automatic handling of the scrap inthat operation. Testimony of Mr. Hargraves (Tr. 122); (Complainant’s Ex.2, Photos taken April 13, 1988, Frames 13-15; Photos taken May 31, 1989,Roll 1, Frames 8-17). There were two times of potential dust exposure;(1) when a radiator was loaded from the floor to the Logeman Briquettemachine; and, (2) when the scrap was ejected from the machine. Testimonyof Mr. Hargraves (Tr. 124-125.).11. A Sorter sorts scrap at a vibratory table which, when activated,shakes the material toward the Sorter where he can determine the type ofscrap and which barrel it will go into. Testimony of Mr. Hargraves (Tr.126-7); (Complainant’s Ex. 2, Photos taken April 13, 1988, Frames 4-6).12. The penalty in this item was group with the following Item, 1(b).The compliance officer’s decision to group the violations was inpursuance of the Field Operations Manual. The citation was considered\”serious\” because of the ineffectiveness of the respiratory protectionprogram in conjunction with the overexposure to lead and copper.Testimony of Mr. Hargraves (Tr. 127).13. Item 1(b) alleged a violation of 29 C.F.R. 1910.1000(e) for afailure to determine and implement feasible administrative orengineering controls to reduce the employee exposure to copper dust tothe permissible exposure limit. The Secretary suggested implementing andtesting control methods including an exhaust ventilation and job rotation.14. The Respondent advances several arguments concerning Item 1(b).Respondent argues that: (1) the standards are invalid, (2) the Secretarydid not establish the presence of copper dust, (3) the Secretary did notconsider the respirator protection factor, (4) there is no evidence ofany hazard, (5) there is no evidence of employer knowledge, and finally,that the Secretary failed to establish controls were technologically andeconomically feasible.15. The Respondent’s argument concerning the validity of 29 C.F.R.1910.1000 has been earlier considered in this decision.16. Bay State’s argument that the Secretary did not establish thepresence of copper dust, rests upon the testimony of Mr. Abel who statedthat he could not determine by the analytical technique the differencebetween copper dust and copper fumes in the sample. (Post-hearing briefat 26; Tr. 275-76).17. The argument is unpersuasive. Mr. Hargraves observed the nature ofthe work, which was sorting and briquetting. He was sampling for copperdust. There was no source of copper fumes near the employees involved.(Tr. 486). Mr. Hargraves testimony is credited. The samples of elementalcopper represent copper dust.18. The Respondent relies on its use of respirators. But Bay State didnot have an effective respirator program in place at the time of theinspection. (See ?? 40-47). In describing the requirements for aneffective respirator program, both the lead standard and the applicableair contaminant standard for copper refer to section1910.134(b).Seesections 1910.1025(b) (4) and 1910.1000(e). The protection factor of therespirators was properly not considered.19. The health effects of excessive copper exposure include mildirritation of the skin, eye, nose and throat. However, exposure toexcessive copper in conjunction with excessive lead has a greateradverse effect than for copper alone. (Complainant’s Ex. 17; Testimonyof Mr. Hargraves, Tr. 127-130).20. As to Bay State’s knowledge of employee exposure to excessive copperdust, it is found that the employer had at least constructive knowledge.Bay State is a brass and bronze ingot manufacturer. Testimony of Mr.Powers (Tr. 553). It is officially noticed that, both brass and bronzeare copper alloys. The nature of the work, the sorting and briquettingof scrap in the manufacturing process produced copper dust. Testimony ofMr. Hargraves. (Tr. 486). It is perhaps for these reasons thatrespondent relies heavily in this argument upon the wearing ofrespirators by employees. (Respondent’s Brief, pp. 39-40). However,given the problems of the respirator program elsewhere described in thisopinion it is found that with reasonable diligence Bay State should haveknown of the excessive copper dust.21. Engineering controls were technologically and economically feasiblefor copper dust under section 1910.1000 (e). [[10]] The Secretary ofLabor relies upon testimony as to the feasibility of engineeringcontrols for lead dust as controlling for copper dust. It is argued thatthe same engineering controls would eliminate excessive exposure to eachbecause copper and lead dusts are generated at the same time and by thesame processes. Testimony of Mr. Hargraves (Tr. 80-82, 118). Similarly,in arguing the deficiencies of engineering controls for copper, BayState asserts that the deficiencies for controls for lead wellillustrate those for copper. (Respondent’s Brief, p. 41). As describedin paragraphs 35- 39, engineering controls are economically andtechnologically feasible.22. Three employees were exposed to excessive copper dust; each exceededthe permissible exposure limit. (Complainant’s Ex. 3). These were theexposures for the Logeman Briquette Operator (8.61 ?g\/M^3 ), D&JBriquette Operator (2.23 ?g\/M^3 ), and Sorter Composition Table 2.55?g\/M^3 )._Item 2,alleged violation of 29 C.F.R. _?_1910.1025(c)(l)._23. This item alleges that Bay State exposed employees to lead inconcentrations more than 50 micrograms per cubic meter of air averagedover an eight-hour period. Nineteen separate instances were cited. Thestandard states that: the employer shall assure that no employee is exposed to lead at concentrations greater than fifty micrograms per cubic meter of air (50 gg\/ 1-m3) averaged over an 8-hour period.24. As a result of the stay at the time of the inspection of paragraph(e)(l) for Bay State’s industry, under Steelworkers, that industry was: (I)mmediately required to meet the PEL of 50 ?g\/m^3 by some combination of engineering work practice, and respirator control. 647 F.2d at 1311.25. Critical in assessing what happened in this case regarding Item 2 ofthe citation is the text of paragraph (c)(3), which provides: When respirators are used to supplement engineering and work practice controls to comply with the PEL and all the requirements of Paragraph (f) have been met, employee exposure, for the purpose of determining whether the employer has complied with the PEL, _may be considered to be at the level provided by the protection factor of the respirator_ for those periods the respirator is worn…[Emphasis added].26. The nineteen specific instances are proved. OSHA forms 91B,Complainant’s Exhibit 3, Complainant’s Exhibit 6. This is from thesampling of inorganic lead. Testimony of Mr. Hargraves (Tr. 145-146). Itis undisputed that the employees involved were wearing Model 9920disposable dust respirators which are manufactured by the 3M Company.These respirators had a protection factor of ten. Testimony Mr.Hargraves (Tr. 155-156). Except for one instance (a Logeman BriquetteOperator sampled on April 13, 1988) would a factor of ten times the PELbe exceeded. The Secretary of Labor’s case turns on whether theprotection factor should be applied. This depends on whether all therequirements of paragraph (f) of the section 1910.1025 have been met.27. For the reasons stated in paragraphs 40-47, all the requirements inparagraph (f) have not been met, and the respondent is not entitled tothe ten-point protection factor. The Secretary has thus established aviolation of Item 2._Item 3(a) and Item 3(b),alleged violation of 29 C.F.R. ? 1910.1025(d)(8)(i) and1910.1025(d)(8)(ii)._28. Under 29 C.P.R. ? 1910.1025(d)(8)(i), the employer is required tonotify each employee in writing within five working days of receipt oflead exposure monitoring results of exposure of the employee. TheRespondent conducted air sampling before the inspection on November 18,1985, August 20, 1986, January 5, 1988, and March 24, 1988.(Complainant’s Ex. 4).29. Item 3(b), alleged a violation of 29 C.F.R. ? 1910.1025(d)(8)(ii)which states whenever exposure monitoring indicates the representativeemployee exposure, without regard to respirators, exceeds the PEL, theemployer is required to notify affected employees in a written statementthat the PEL was exceeded and provide a description of the correctiveaction taken or to be taken to reduce exposure to or below the PEL.30. The Respondent argues; (1) the citation extends beyond the six-monthstatute of limitations as some air monitoring results were in 1985 and1986, (2) there was no obligation to conduct monitoring or if testingwas done, no obligation to notify employees of the results, (3) it isunclear as to which PEL. 200 ?g\/m^3 or 50 ?g\/m^3 , OSHA regards as thetrigger for this standard.31. To the extent that the cited items concern air monitoring results in1985 and 1986, Bay State persuasively argues that the allegations extendbeyond the six-month statute of limitations prescribed in 29 U.S.C.section 658(c). However, the argument that there was otherwise noobligation to notify employees of the monitoring results on the groundthat the Secretary had not proved any requirement for initial oradditional monitoring ignores the plain wording of the cited standardsand is less consistent with the purposes of the Occupational Safety andHealth Act. 29 U.S.C. section 651(b). The final argument, that thecitation does not mention the PEL said to trigger the standard isrejected for the same reason.32. Except as to the aforementioned monitoring results in 1985 and 1986,the citation items are proved. Testimony of Mr. Hargraves (Tr. 162);Complainant’s Ex. 4; O’Brien Deposition, Complainant’s Ex. 9 (p 17).33. The significance of proper notification of employees under thesestandards is stressed in the testimony of Mr. William Revoir, animpressive expert on respirators. (Tr. 507- 517). In his opinion,receiving information on potential hazards motivates an employee toexercise care in the use of his respirator. (Tr. 509).34. Bay State was in violation of Items 3(a) and 3(b), except for whathas been noted concerning the statute of limitations._Item 4,alleged violation of 29 C.F.R. _?_1910.1025(e)(l)._35. The Respondent was cited for a lack of engineering controls at fourwork stations for the Logeman Briquette Operator, the D&J BriquetteOperator, and the Sorters at the composition table and brass table. Asdiscussed elsewhere in this opinion, the applicable PEL for this purposewas 200 ?g\/m^3 . The descriptions of the first three positions (thebriquette operators and the sorter at the composition table) aredescribed in paragraphs 9-11. The Sorter at the brass table stands infront of a stationary table, sorts brass according to type, and placesit in an appropriate bin. Testimony of Mr. Hargraves (Tr. 132);Complainant’s Ex. 2 (Photos taken April 13, 1988, Frames 10-12).36. Mr. Hargraves and Mr. Cassady, well qualified witnesses, testifiedon the feasibility of reducing the levels of lead through the use of atthe Bay State Foundry. Each recommended a \”step\” increase type ofcontrol. That is, start with controls or practices costing the least.Mr. Hargraves suggested three possible ways to control the exposure.First, a dust suppressant mist system which cost about $800 per unitcould reduce the dust level significantly. (Tr. 179-181). Second, apiece of equipment to electrostatically charge mist particles which costabout $2,400 to $3,000 per unit. Finally, the next step would be apush-pull vacuum, system at about $5,000 per unit. (Tr. 180-85).37. Mr. Cassady first recommended a simple reexamination of housekeepingefforts, such as a vacuum cleaning system, a water wetdown system, orthe use of pine-treated sawdust. (Tr. 23-24). Second, a fine mistdust-suppressant system at a cost of $2,500 per unit could be utilized.(Tr. 26-27). Finally, the most expensive alternative, a push-pullventilation system, which could run from $10,000 to $20,000 per table,depending upon whether a new \”baghouse (collection) capacity was necessary.38. Both witness offered numerous suggestions which were reasonablypriced. The Secretary has proved that engineering controls are botheconomically and technologically feasible.39. The Respondent should have known of its responsibility under section1910.1025(e) to meet the 200 microgram per cubic meter level through theuse of engineering controls; this goes back to the March 1, 1979, orderin Steelworkers and the Secretary’s 1981 Federal Register publication.Items 5(a) through 5(c), alleged violation of 29 C.F.R. ??1910.1025(f)(2.(i), 1910-1025(f)(3)(ii), 1910.1025(f)(4)(i) and1910.134(b), (d), (e), and (f).40. These items deal with the proper selection and use of respirators.Under 29 C.F.R. ? 1910.1025(f)(2)(i) the employer is required to selectan appropriate respirator for its employees. The complaint alleges thatthe Logeman Briquette Operator was not wearing an appropriaterespirator. The sampling revealed that the Logeman Briquette Operatorwas exposed at an 8-hour time weighted average (hereinafter TWA) of 1.05?g\/m^3 , or 21 times the PEL. (Complainant’s Ex. 3). The 3M respiratorwhich the Logeman Briquette Operator used has a maximum protectionfactor of only 10 times the PEL. The respirator was perforce inappropriate.41 Section 1910.10-125(f)(3)(ii) dealing with respiratory protectionrequires that the employer perform quantitative and qualitative face fittests at the time of initial fitting and at least every six monthsthereafter. The violation of this standard was conceded during theinspection and O’Brien deposition. Testimony of Mr. Hargraves (Tr. 297);O’Brien Deposition, Complainant’s Ex. 9 (pp. 21-25). As to the degree offailure to comply with the standard, see the testimony of Mr. Revoir.(Tr. 507-511).42. Section 1910-1025(f)(4)(i) requires that the employer institute arespiratory protection program in accordance with section 1910.134(b),(d), (e), and (f). Concerning Item 5(c), the Complaint in Paragraph V(I)(2) alleges the following: (1) written standard operating procedures governing the selection and use of respirators w ere not established (1910.134-134(b) (1): and (2) respirators were worn when conditions such as growth of beard, side burns, a skull that projected under the facepiece, or temple pieces on glasses, prevented a good face seal. Employees who were determined to exceed the permissible exposure limit of 0.05 ?g\/m^3 as listed in Serious Citation #1, Item #2 in a number of cases were allowed to wear beards and facial hair when wearing a single use negative pressure respirator (3M 9900) (1910.134(e)(5)(i)).43. Written standard operating procedures were not made available to thecompliance officer, and he otherwise did not see any. Testimony of Mr.Hargraves (Tr. 198, 471). On cross-examination it was brought out thatthe compliance officer did not look at all of the walls to see if anyinstructions were posted. (Tr. 470). However, there is no evidenceindicating that any instructions were posted or otherwise existed. Thecompliance officer’s inference as to their non-existence is credited. Asa matter of previous history, the Secretary notes that this conditionhad previously existed, and Bay State had reported to OSHA in 1982 thatthe matter had been corrected. Complainant’s Ex. 19 (Nov. 1, 1982,letter to Area Director from Paul Rothery).44. Three to five employees had excess facial hair and this interferedwith the protective seal of the respirators. Testimony of Mr. Hargraves(Tr. 198-199, 474, 475).45. Facial hair passing between the respirator and the wearer’s faceincreases the penetration of contaminants into the interior of therespirator. Growth even in the first one to three days has been shown topractically eliminate the protection factor of the respirator. Testimonyof Mr. Revoir (Tr. 511-512).46. A representative of the 3M company refused to certify employees withfacial hair to wear 3M respirators. Testimony of Mr. Hargraves (Tr.414); that of Mr. Powers (Tr. 605).47. On the matter of employer knowledge and whether the violations underItem 5 were serious, as elsewhere discussed in this opinion, Bay Statewas aware of the high blood lead levels of its employees. Thisestablishes employer knowledge that the respirator program wasineffective and that the resulting hazard was serious. R.S.R. Corp. v.Donovan, 747 F.2d 294, 304 (5th Cir. 1984)._Item 6alleged violation of 29 C.F.R. _?_1910.1025(g)(2)(viii). _48. The cited standard requires that: the employer shall prohibit the removal of lead from protective clothing or equipment by blowing, shaking or any other means which dispenses lead into the air.49. On April 13, 1988, a briquette operator used compressed air to cleanhimself before leaving the work area. Testimony of Mr. Hargraves (Tr.203); O’Brien Deposition, Complainant’s Ex. 9 (p. 30) . Compressed airwas also used to clean equipment. Complainant’s Ex. 9 (p. 31).*WILLFUL CITATION NO. 2 *_Item 1,alleged violation of 29 C.F.R. _?_1910.1025(i)(3)(i). _50. The cited paragraph, requires that: the employer must assure that employees who work in areas where their airborne exposure to lead is above the PEL, without regard to the use of respirators, shower at the end of the work shift.51. Employees were not required to shower at the end of a shift, and allemployees did not take a shower. Testimony of Mr. Hargraves (Tr. 98,104, 304, 306, 379). One employee who did not shower was RichardTurgeon, whose lead exposure exceeded 50 micrograms per cubic meter.Complainant’s Ex. 4 (Tr. 379).52. Bay State did not enforce the shower rule because it felt thatshowering was a matter of personal choice. Testimony of Mr. Hargraves(Tr. 476-477). Bay State contends that there was established no feasiblemeans for it to comply with the standard. Under Steelworkers, the burdenof proof of any lack of feasibility at this stage would be on theemployer. Moreover, the standard was clearly enforceable by a stringentwork rule. Testimony of Mr. Hargraves (Tr. 476-477).53. In pursuing its own rule of personal choice, Bay State acted inintentional disregard of cited standard’s requirements. The violation isfound to be willful. Ensign-Bickford Co. v. Occupational Safety andHealth, 717 F.2d 1419 (D.C. Cir. 1982) ; F.X. Messina Construction Corp.v. OSHRC, 505 F.2d 701,702 (1st Cir. 1974).54. On the issue of willfulness, Bay State argues that there wasuncertainty in Steelworkers as to the application of the lead standardto it’s industry. Respondent’s Brief (p. 107). This is reflected in, theadvice of counsel as described in Mr. Powers’ testimony. (Tr. 588, 589).The assertion of counsel at the hearing in this regard is at Tr. 623.The text of Steelworkers as to its application to Bay State’s industryis clear. Under the authorities cited in pages 19-23 of Complainant’sbrief, there is no justification for excusing the willful conduct of theemployer for this reason; to do so would indeed be a signal to otheremployers to ignore clear OSHA mandates at the expense of employeesintended to be protected by the Act._Item 2, as amended (Tr. 390-91)alleged violation of 29 C.F.R. _?_1910.1025(j)(3)(i)(A)._55. On October 19, 1981, Bay State was issued a serious citation forviolations of section 1910.1025(j)(3)(i)(A): Medical examinations and consultations for lead were not made available annually for each employee for whom a blood sampling test conducted during the preceding 12 months indicated a blood-lead level at or above 40 ?g\/100 g.56. The Citation set forth an abatement date of February 22, 1982. Thisitem was one of two items contested by Bay State. A settlement wasreached containing the following language: (4)…(a) The abatement date set for item 4, citation No. 1 – 29 C.F.R. 1910.1025-(j)(3)(i)(A) is extended from February 22, 1982, to October 15, 1982. Respondent agrees to furnish a progress report to the Area Director on or before July 15, 1982 and a final report on or before October 15, 1982. (6) Respondent certifies that the violations alleged have abated or will be abated by the abatement dates as shown in the citation as amended and that the penalty, as amended, has been paid. Respondent agrees to comply with the Act in all respects in the future. Complainant’s Ex. 19.57. The settlement was approved by an administrative law judge’s orderof April 26, 1982; this was subsequent to the Steelworkers, decision. Ina November 1, 1982, progress report signed by Bay State’s President thefollowing representation was made concerning the aforementioned Item No. 4: Medical examinations and consultations for lead for each employee with a blood-lead level at or above 40 ?g\/100 g. are now being arranged. Complainant’s Ex. 19.It further represented that the action would be taken by the end of 1982.58. Complainant’s Exhibit 7 shows 85 readings for 28 separate employeeswith blood-lead readings at the action level; these were obtained by BayState from January 1986 to April 1988. Except for two employees withreadings at the medical removal levels (Tr. 605), no medicalexaminations were made available. Testimony of Mr. Powers (Tr. 605-607).See also the O’Brien Deposition, Complainant’s Ex. 9 (pp. 26-29); andthe testimony of Mr. Hargraves, (Tr. 107-225, 302-303).59. The above-described circumstances demonstrate an intentionaldisregard of the requirements of the cited standard. Bay State’sargument that the cited standard does not apply because of itslimitation to employees covered by section 1910.1025(j)(l)(i) isunpersuasive. While there is no evidence reciting in haec verba theprerequisite of paragraph (j)(l)(i), the described settlement history,and the cited testimony of Mr. Powers are implicit admissions of theapplicability of the standard.*OTHER THAN SERIOUS CITATION NO. 3*_Item 1,29 C.F.R. _?_l910.95 (c) (l)._60. The Complaint charges the Respondent with failure to administer acontinuing, effective hearing conservation program for employees whosenoise exposure equaled or exceeded an 8-hour time-weighted average soundlevel (TWA) of 85 dba in accordance with 29 C.F.R. ? 1910.95(c)(l). TheComplaint alleges that about 10 employees were exposed to thiscondition, including the Knockout Operators for furnaces #I and #2, theSorter at the composition table and the D&J Briquette Operator. Thesample results are contained in Complainant’s Exhibit No. 6. Theysupport the allegation of excessive noise triggering the requirement fora continuing, effective hearing conservation program.61. For example, on OSHA 92, #15419575, a Briquette operator, wassampled for 393 minutes with an equivalent exposure of 85.9 dba. Thehearing conservation amendment (HCA) calculation under paragraph (c) ofthe standard is 87.6 dba. The Knockout Operator at Furnace #1 wassampled for 218 minutes with an equivalent exposure of 94.0 dba; withregard to the HCA, the noise level was 89.0 dba. Complainant’s Ex. 6(Sampling No. 16010837). The Knockout Operator at Furnace #2 was sampledfor 272 minutes and had an equivalent exposure of 90.9 dba; under theHCA the noise level was 88.3 dba. Complainant’s Ex. 6 (Sampling No.15419591). Finally, the Sorter at the composition table was tested for425 minutes and had an equivalent exposure of 85.1 dba with an HCA noiselevel of 87.2 dba. complainant’s Ex. 6 (Sampling No. 15419559).62. With respect to the content of the OSHA 92, see also the testimonyof Mr. Hargraves (Tr. 208). All continuous intermittent and impulsivesound levels from 80 to 130 decibels are integrated into the noisemeasurements. See paragraph (d) (2) (i) of the standard.63. While there was some type of hearing protection, most likely a typeof earplug, there was no audiometric testing. Testimony of Mr. Hargraves(Tr. 212). Bay State argues that the evidence is insufficient toestablish knowledge of the cited condition. The availability of someform of hearing protection suggests an awareness of a problem ofexcessive noise._Item 3,2,9 C.F.R. _?_1910.1025(g)(2)(vii)._64. The cited standard requires a specific caution label forlead-contaminated clothing.65. There was no such label at Bay State’s facility. Testimony of Mr.Hargraves (Tr. 213-214)._Item 4,29 C.F.R. _?_1910.1025(i)(4)(iv)._66. The Complaint alleges that the Respondent allowed employees who wereexposed to lead above the PEL to enter the lunchroom without, removingsurface lead dust from protective work clothing by vacuuming, downdraftbooth or other cleaning methods.67. Employees entered the lunchroom without removing surface lead. Theconcern here is with the potential ingestion of dust that may containIead, thereby the blood levels of the employees. Testimony of Mr.Hargraves (Tr. 213-214)._Item 5,29 C.F.R. ? 1910.1025 (j)(3)(iv)(A)(1-6)._68. The Complaint alleges that the respondent failed to providephysicians conducting medical examinations or consultations under 29C.F.R. section 1910.1025 with: 1. a description of the affected employee’s duties as they relate to the employee’s exposure: 2. the employee’s exposure level or anticipated exposure level to lead and to any other toxic substance applicable; 3. a description of any personal protective equipment used or to be used; 4. prior blood lead determinations; and 5. all prior written medical opinions concerning the employee in the employer’s possession or control.69. According to Mr. O’Brien, since no routine physicals were giventhere was no reason to forward the information to Dr. Burns. Testimonyof Mr. Hargraves (Tr. 214). Company policy was to not offer physicalexaminations. (?? 55-59)._Item 6,29 C.F.R. ? 1910.1025(l)(l)(iv)._70. The Complaint alleges that the Respondent failed to provide trainingat least, annually for each employee subject to lead exposure at orabove the action level, or for whom the possibility of skin irritationexisted.71. The training was not provided. Testimony of Mr. Hargraves (Tr.216-217); that of Mr. Powers (Tr. 589-92). Training is significant inproviding information on potential hazards to employees; it motivatesthem to exercise care in the use of respirators. Testimony of Mr. Revoir(Tr. 509)._Items 7(a) through 7(e),29 C.F.R. _?_1910.1025(n), subparagraphs (l)(ii)(A) through (E)_72. Each of these items deal with recordkeeping violations under 29C.F.R. ? 1910.1025(n). Item 7(a) alleges a violation of section1910.1025(n)(l)(ii)(A) requiring that exposure monitoring dates, number,duration location and results of each of the samples taken, including adescription of the sampling procedure used to determine representativeemployee exposure where applicable be included in the required records.73. Item 7(b) alleges a violation of section 1910.1025(n)(l)(ii)(B)because the respondent failed to establish and maintain a description ofthe sampling and analytical methods used in monitoring required under 29C.F.R. ? 1910.1025(d), and evidence of the accuracy of said methods.74. Item 7(c) alleges the Respondent failed to record the type ofrespiratory protective devices, if any, worn by employees sampled forlead exposure pursuant to 29 C.F.R. section 1910- 1025(d).75. Item 7(d) alleges a violation of section 1910.1025(n)(l) (ii) (D),because the Respondent failed to record the name, social securitynumber, and job classification of each employee monitored for leadexposure pursuant to 29 C.F.R. ? 1910.1025 (d), as well as of all otheremployees whose exposure said monitoring was intended to represent.76. Item 7(e) charges that the respondent violated section 1910.1025(n)(l) (ii) (E), when monitoring for lead exposure pursuant to 29 C.F.R.and failed to record environmental variables that could have affectedthe measurement of employee exposure.77. The extent of the Respondent’s recordkeeping on the above-notedmatters was submitted on Complainant’s Exhibit 4. It is incomplete. Seethe testimony of Mr. Hargraves (Tr. 218-219)._Item 8(a) through 8(d)29 C.F.R. _?_1910.1025(n), subparagraghs (2)(ii)(A) through (D). _78. Item 8 also deals with recordkeeping violations under section1910.1025(n). Item 8(a) charges the Respondent with a violation of 29C.F.R. section 1910.1025(n)(2)(ii)(A), and alleges the Respondent failedto record the social security number and a description of the duties ofemployees monitored for blood lead level pursuant to 29 C.F.R. ?1910.1025(j).79. Item 8(b) charges the respondent with a violation of section1910.1025 (n) (2) (ii) (B), and alleges the Respondent failed to includethe written opinions in the record of employees monitored for bloodIevels pursuant to 29 C.F.R. ? 1910.1025(j).80. Item 8(c) alleges a section 1910.1025(n)(2)(ii)(c) violation becausethe Respondent failed to include with the record of medical surveillanceperformed pursuant to 29 C.F.R. ? 1910.1025(j) the result of anyairborne exposure monitoring done for the employee and therepresentative exposure levels supplied to the physician.81. Item 8(d) alleges the respondent violated the standard set forth at29 C.F.R. ? 1910.1025(n)(2)(ii)(D) in that it failed to include anyemployee medical complaints related to lead in the medical surveillancefor lead exposure conducted pursuant to 29 C.F.R. ? 1910.1025(j).82. The Respondent failed to maintain a proper amount of information onthe blood lead results. Mr. O’Brien provided Mr. Hargraves copies ofblood lead results that were incomplete under the standard. Testimony ofMr. Hargraves (Tr. 221); Complainant’s Ex. 7, (last fourteen pages).Again, a review of the referenced pages shows that the requiredinformation was not kept.*_G. Penalties_*83. The determination of what constitutes an appropriate penalty iswithin the discretion of the Review Commission. Long Manufacturing Co.,v. OSHRC, 554 F.2d 902 (8th Cir. 1977). In determining the penalty, theCommission is required to give due consideration to the size of theemployer, the employer’s good faith, history of previous violations andthe gravity of the violation84. The gravity of the offense is the principal factor to be consideredNacirema Operating Co., 1. BNA .1 (Rev. Com. 1972). With respect toItems 1(a) and (b), concerning exposure to excess copper dust and thefailure to determine and implement feasible administrative orengineering controls, the hazards and therefore the consequent gravity,are those described in Complainant’s Exhibit 17, a NIOSH documententitled \”Occupational Health Guideline for Copper Dusts and Mists.\” Theshort-term effects and long-term effects are the following: 1. Short-term Exposure: Powdered copper or dusts or mists of copper salts may cause a feeling of illness similar to the common cold with sensations of chills and stuffiness of the head. Small copper particles may enter the eye and cause irritation, discoloration, and damage. 2. Long-term Exposure: Repeated or prolonged exposure to copper dusts or mists may cause skin irritation or discoloration of the skin or hair. p. 1.In this case is the added factor of concern for the combined effect ofexposure to excessive amounts of copper with excess lead. Testimony ofMr. Hargraves (Tr. 129).85. The harmful effects of excessive amounts of airborne lead have beenwell documented. As noted in Steelworkers: . . . OSHA amassed voluminous evidence of the specific harmful effects of lead at particular blood-lead levels and correlated these blood-lead levels with air-lead levels. By this means OSHA was able to describe the actual harmful effects of lead on a worker population at both the current PEL and the new PEL. In its proof of significant harm from lead at the current PEL and the careful measurement of the likely reduction in that harm at the new PEL the lead standard stands in marked contrast to the benzene standard struck down by the Supreme Court.United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189,1202 (1980): cert den. Sub Nom. Lead Industries Assn. v. Donovan, 453U.S. 913 (1981).86. At pages 1238 through 1267 Steelworkers specifically accepted OSHA’sfindings as to the adverse health effects of lead, includingparticularly, damage to the blood system, the nervous system, thekidneys, and the reproductive system. The described gravity of exposureto excessive concentrations of lead is high and \”serious\” for purposesof penalty assessment under Citation 1 and Citation 2.87. As previously discussed, the two violations in Citation 2 have beenfound to be willful violations. There is also some history of previousviolations referenced in Complainant’s Exhibit 19. As to the size of thecompany, Bay State has 30 to 35 employees. Pleadings. There is nopersuasive evidence of good faith upon the part of the employer. Thetestimony of the plant manager that Bay State acted on the advice ofcounsel that the \”lead standard\” did not apply to its industry (Tr. 577,588-89) is not considered to support a finding of \”good faith\” upon thepart of Bay State for the same reasons that it was not considered toimmunize the employer from responsibility for its own actions withrespect to Citation 2.88. Against this background regarding the gravity of the violations, thesize of the employer, and the absence of good assessments of theSecretary of Labor are affirmed except for Citation 1, Item 3, for whichsome penalty reduction is made because of a vacation of a portion of thecitation._*ORDER*_IT IS HEREBY ORDERED THAT:*SERIOUS CITATION No. 1*1. Items 1(a) and 1(b), violations of 29 C.F.R. ? 1910.1000 (a) (2) and29 C.F.R. ? 1910.1000 (e) with a penalty of $480 are affirmed.2. Item 2, a violation of 29 C.F.R. ? 1910.1025(c)(l) with a penalty of$780 affirmed.3. Items 3(a) and 3(b), violations of 29 C.F.R. section1910.1025(d)(8)(i) and 29 C.F.R. ? 1910.1025(d)(8)(ii) are affirmed inpart, and a penalty of $400 is assessed.4. Item 4, a violation of 29 C.F.R. ? 1910.1025(e)(l) with a penalty of$640 is affirmed.5. Items 5(a), 5(b), and 5(c), violations of 29 C.F.R. section1910.1025(f)(2)(i), 29 C.F.R. ? 1910.1025(f)(3)(ii), 29 C.F.R. ?1910.1025(f)(4)(i) and 1910.134(b), (d), (e), and (f) with a penalty of$560 are affirmed.6. Item 6, a violation of 29 C.F.R. ? 1910.1025(g)(2)(viii) with apenalty of $640 is affirmed.*WILLFUL CITATION NO. 2*7. Item 1, a violation of 29 C.F.R. ? 1910.1025(l)(3)(i) with a penaltyof $8,000 is affirmed.8. Item 2, as amended, a violation of 29 C.F.R. section 1910.1025 (l)(3) (i) A with a penalty of $8,000 is affirmed.*OTHER THAN SERIOUS CITATION NO. 3*9. Item 1, 29 C.F.R ? 1910.95(c)(l) is affirmed.10. Item 3, 29 C.F.R. ? 1910.1025(g)(2)(vii) is affirmed.11. Item 4, 29 C.F.R. ? 1910.1025(i)(4)(iv) is affirmed.12. Item, 5, 29 C.F.R. ? 1910.1025(j)(3)(iv)(A)(1-6) is affirmed.13. Item 6, 29 C.F.R. ? 1910.1025(l)(l)(iv) is affirmed.14. Items 7(a) through 7(e), 29 C.F.R. ? 1910.1025(n), subparagraphs(1)(ii)(A) through (E) are affirmed.15. Item 8 (a) through 8(d), 29 C.F.R. ? 1910.1025(n), subparagraphs(2)(ii)(A) through (D) are affirmedPaul A. TenneyJudge, OSHRCDATED: May 21, 1990Washington, D.C.FOOTNOTES:[[1]] Bay State also makes other arguments involving the lead standardthe allegations exposure to excessive levels of copper dust under 29C.F.R. ? 1910.1000. These arguments raise issues which we did not askthe parties to brief and which, in our judgement are without merit. BayState’s major contention–that the decision in United Steelworkers v.Marshall. 647 F.24 1189 (D C. Cir. 1980).cert. denied, 453 U.S. 913(1981), renders the entire lead standard unenforceable has been rejectedin other cases. Advance Bronze, Inc. v. Dole. 917 F.2d 944 (6th Cir.1990); Cleveland Aluminum Casting Co., 83 OSAHRC 21 B5 (No. 84-198,1985) (ALJ). aff’d without published opinion, 788 F.2d 38 (DC Cir. 1986)Both decisions predate Bay States briefs in this case. As to Bay State’scontention that the Secretary has the burden to establish that employeeshave actually ingested the air contaminants in question lead and copperdust, the Commission has previously rejected similar arguments.. SeeTitanium Metals Corp of America. 6 BNA OSHC 1760, 1763-64 & n.11, 1978CCH OSHD ? 22,836, p. 27,615 & n.11 (No. 15411 1978) (in order toestablish exposure to an air contaminant above the exposure limit, theSecretary need only measure the level of containment in the employee’sbreathing zone, and such measurements may even be taken before the airis processed by the employee’s respirator). The only citation items inwhich actual ingestion of the toxic substance is an explicit element ofthe alleged violation are those that involve certain provisions of thelead standard dealing with the level of lead in an employee’sbloodstream. Bay State, however does not point to any specific error onthe judges findings that employees in fact had excessive blood leadmeasurements[[2]] While as Bay State points out Abel testified that an analysis isrequired in order to distinguish inorganic from organic lead, thatremark was made in the abstract. Abel was responding to hypotheticalquestions posed by Bay State’s counsel on cross-examination. Forexample, after testifying that motor vehicle emission contain lead, Abelwas asked \”do you know from your knowledge, education and experiencewhether the lead in the air in Main Street, Springfield, Massachusettsis organic or inorganic.\” He replied that neither he nor anyone elsecould make that determination \”without analysis.\” Abel’s views regardingthe need for analyses in certain conditions were not directed to thecircumstances presented in this case, nor was Abel asked to comment onHargraves’ opinion that the inorganic nature of the lead produced in BayState’s operations could be determined by means other than actualchemical analysis Thus, Abel’s testimony does not establish that itwould be necessary to conduct an analysis specifically for inorganiclead if it were already known that the substance being tested wasinorganic in nature[[3]] Bay State’s reliance on our decision in Collter-Kenworth Co., 13BNA OSHC 1208, 1986-87 CCH OSHD ? 27,867 (No. 80-2848, 1987). vocated bypopulation. 13 BNA OSHC 2165 1987-90 CCH OSHD ? 28,515 (1989), andSpring Air Mattress Co. 2 BNA OSHC 1416, 1974-75 CCH OSHD ? 19,146 (No.1422,1974) is misplaced. Both cases are factually distinguishablebecause they involved situations in which there was actual evidence thatOSHA’s exposure measurement included substances or physical agents otherthan those covered by the cited standards. Furthermore, Spring AirMattress was subsequently overruled to the extent it held that theburden is on the Secretary to prove that extraneous substances are notpresent in sufficient quantity to render her exposure measurementsAnaconda Aluminum Co., BNA OSHC 1460, 1465 n.15, 1981 CCH OSHD ? 25,300,p. 31,338 n.15 (No 13102. 1981).[[4]] An \”alloy\” is defined as a material that is mixed with one or moremetals of a metallic in nature. Webster’s Third New InternationalDictionary 58 (1971).[[5]] Bay State objects that the supplemental statement of reasons isirrelevant here because it postdates the citations at issue. Thesupplemental statement, however, reaffirms the conclusions, OSHA reachedwhen it first promulgated the lead standard. While it appears that OSHAdid not identify brass and bronze ingot manufacturing as a separateindustry until after the citations were issued here. OSHA neverthelesshas consistently regarded operations of the type conducted by Bay Stateas presenting a hazard of lead exposure within the scope of ? 1910.1025.Cf. Smith Steel Casting Co., 15 BNA OSHC 1901, 1008, 1991 CCH OSHD ?29,314. p. 39,367 (No. 80-2069, 1991) (consolidated) (tracing history of29 C.F.R. ? 1910.1000 to establish that the Secretary had never alteredan exposure limit from its original promulgation).[[6]] We also decline to consider two other arguments Bay State raisesconcerning matters on which we did not ask for briefs. Bay State takesexception to the judge’s ruling that it did not timely file its requestsfor admissions. That ruling, however, was within the judges discretion.Bay State also claims that the judge’s factual findings do not correctlyidentify its industry. Even assuming the judge erred by failing to findthat Bay State is a member of the brass and brass ingot manufacturingindustry, Bay State has failed to show that it was prejudiced by thejudge’s failure to make the appropriate factual finding[[1]] Items 7(a) and 7(b) of Citation No. 1 were withdrawn. (Tr. 205).[[2]] Item 2 of Citation No. 3 was withdrawn.[[3]] Section 9 (a) of the Act, 29 U.S.C. ? 658 (a) , reads, inpertinent part:If, upon inspection or investigation, the Secretary or his authorizedrepresentative believes that an employer has violated a requirement ofsection 5 of the Act, of any standard, rule or order promulgatedpursuant to section 6 of this Act, or of any regulations prescribedpursuant to this Act, he shall with reasonable promptness issue acitation to the employer…[[4]] Section 9(c) of the Act, 29 U.S.C. ? 658(c), reads:No citation may be issued under this section after the expiration sixmonths following the occurrence of any violation[[5]] 8 C Wright & A. Miller, Federal Practice and Procedure, ? 2253 at706 & n. 26 (1970).[[6]] ? 2200.52 General provisions governing discovery.(a) General.(1) Methods and limitations.(ii) requests for admission to the extent provided in ? 2200.54;[[7]] A copy of my January 18, 1989, and April 26, 1989, orders areappended hereto as Appendix A.[[8]] 8 C Wright & A. MiIler, Federal Practice and Procedure, 2263 at736-737 (1970)[[9]] 29 C.F.R. 2200.71 Federal Rule of Evidence 801(d) in pertinentpart states a statement is not hearsay if:(2) Admission by party-opponent. The statement is offered against aparty and is (A) the party’s own statement in either an individual or arepresentative capacity or (B) a statement of which the party hasmanifested an adoption or belief in its truth, or (C) a statement by aperson authorized by the party to make a statement concerning thesubject, or (D) a statement by the party’s agent or servant concerning amatter within the scope of the agency or employment, made during theexistence of the relationship, or …[[10]] Section 1910.1000(e) contemplates that exposure to excessivelevels of toxic substances will be abated by engineering andadministrative controls and that personal protective equipment will beused only in the event that such controls are not feasible or fail toreduce levels to the permissible limit. It is the Secretary’s burden toestablish that controls are technologically and economically feasible. Acontrol is technologically feasible if it can be adapted to theemployer’s operation and is capable of producing a significant reductionin exposure to the particular toxic substance. Samson Paper Bag Co.. v.OSHC, 8 BNA OSHC 1515 (No. 76-222, 1980).”