“SECRETARY OF LABOR,Complainant,v.BAY STATE MELTING CO., INC.,Respondent.OSHRC Docket Nos. 80-0344 & 80-1968_DECISION_Before: BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).Two issues are before the Commission. The first is whether theadministrative law judge erred in concluding that Bay State Smelting(\”Bay State\”) did not commit a willful violation of the portion of thelead standard that prohibits prophylactic chelation of employees.[[1]] The judge’s ruling affirming the violations as serious is not before usfor review.[[2]] The second issue is whether the Judge erred in vacatingthe citation which alleged a nonserious violation of the postingrequirements of 29 C.F.R. ? 1903.16.[[3]]The Secretary contends that Bay State consistently and willfullydisguised the problem of the overexposure of its employees to lead byresorting to chelation rather than limiting employee exposure throughthe use of engineeringcontrols or respirators. In order to prove a willful violation, theSecretary must establish that the violation was committed \”with eitheran intentional disregard of, or a plain indifference to, the Act’srequirements.\” D.A. & L. Caruso, Inc., 84 OSAHRC , 11 BNA OSHC 2138,1984 CCH OSHD (P) 26,985 (No. 79-5676, 1984); Mel Jarvis ConstructionCo., 81 OSAHRC 89\/B13, 10 BHA OSHC 1052, 1981 CCH OSHD (P) 25,713 (No.77-2100, 1981).The administrative law judge found that the record did not support awillful violation. The judge found that \”in a situation calling formedical judgment, the Respondent’s actions were in reliance on theopinions of physicians.\”(ii) If therapeutic or diagnostic chelation is to be performed by anyperson in paragraph (j)(4)(i), the employer shall assure that it be doneunder the supervision of a licensed physician in a clinical setting withthorough and appropriate medical monitoring and that the employee isnotified in writing prior to its occurrence.S:\\1984\\Processed\\80-0344 80-1968\\00000000\\04.tif\”Chairman Buckley would vote to affirm the Judge’s findings. In each ofthe instances where the Secretary established that chelating drugs weredistributed to Bay State employees, the drugs were prescribed byphysicians. The record does not support a finding that Bay Statewillfully acted to cause these physicians to prescribe chelating agentsfor prophylactic rather than therapeutic or diagnostic purposes. BayState also set up a program to monitor employees’ blood lead levels andarranged medical help for employees who exhibited high levels. Giventhese circumstances, Chairman Buckley would not say that Bay Stateshowed \”a plain indifference\” to the requirements of the standard or thesafety of its workers.Commissioner Cleary would find that the facts of this case disclose apattern of conduct in violation of the cited standard to the extent thata willful violation of the lead standard is clearly indicated. Thestandard forbids prophylactic chelation of any employee at any time. Itonly permits therapeutic or diagnostic chelation under the supervisionof a licensed physician in a clinical setting with medical monitoring,and the employee mist be notified in writing prior to its occurrence. Atthe time of this inspection, Bay State had been previously cited forviolation of the lead standard and had not contested it. Prior to thesubject Inspection, Bay State obtained prescriptions for chelation froma doctor with the understanding that the employee should appearsubsequently for medical examinations. The employees were not sent forthe medical , and Bay State was warned by the doctor of the adversemedical effects of chelation. After the initial doctor ceased treatment,a second doctor informed Bay State of a high blood lead level of oneemployee who needed hospitalization. Subsequently, Bay StateS:\\1984\\Processed\\80-0344 80-1968\\00000000\\05.tif\”sought a third doctor, and informed him that the drug, penicillamine,had been prescribed by a doctor no longer available. The third doctorcontacted yet another doctor and, without seeing the patient, prescribedpenicillamine, which was administered to Bay State employees who wereencouraged to take it.In Commissioner Cleary’s opinion, the evidence would indicate that BayState manipulated the doctors into prescribing a drug for prophylacticchelation, and that Bay State was warned on several occasions of theadverse effect of chelating drugs by several doctors. The facts of thecase establish that Bay State exhibited, at the very least, a plainindifference to the requirements of the standard.Concerning the alleged posting violation, Chairman Buckley would affirmthe administrative law judge’s dismissal of this citation. ChairmanBuckley notes that the testimony of Bay State’s foreman, Mr. Bond, thateach page of the citation was posted separately next to the time clockwas never directly contradicted. There is no dispute that this satisfiesthe posting requirements of the standard and it is therefore unnecessaryto consider whether Bay State’s posting of the citation at a secondsite, the incinerator, also satisfied the standard’s requirements.Commissioner Cleary notes that when the compliance officer returned tothe Bay State workplace she saw only one citation posted. The citationwas barely visible and the three-page document was taped down on allsides. According to Commissioner Cleary, this kind of display does notmeet the standard’s requireS:\\1984\\Processed\\80-0344 80-1968\\00000000\\06.tif\”ment to post the citation \”in a prominent place\” where it is \”readilyobservable.\”The two Commission members are divided on whether the judge erred in hisdisposition of the two issues in this case. To resolve this impasse andto permit the litigation to proceed to a conclusion, the members haveagreed to affirm the judge’s decision but accord it the precedentialvalue of an unreviewed judge’s decision.[[4]] See Life Science ProductsCo., 77 OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD (p) 22,313 (No.14910, 1977), aff’d sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).FOR THE COMMISSIONEXECUTIVE SECRETARYDATED: AUG 31 1984[[4]]As established by the Act, the Commission is composed of threemembers. Section 12(a), 29 U.S.C. {sec} 661(a). Under section 12(f) ofthe Act, 29 U.S.C. {sec} 661(e), official action can be taken by theCommission with the affirmative vote of atleast two members. Becausethere is a vacancy, the Commission currently has only two members.S:\\1984\\Processed\\80-0344 80-1968\\00000000\\07.tif\”SECRETARY OF LABOR,Complainant V.BAY STATE SMELTING CO., INC., RespondentOSHRC DOCKET NOS. 80-344, 80-1968APPEARANCES: David L. Baskin, Esq., for ComplainantWalter H. McLaughlin. Sr., and William F. York, Esqs., for RespondentDECISION This case arose under 29 USC, sec. 651 et seq. of theOccupational Safety and Health Act of 1970 (the Act). As a result of aninspection by the Occupational Safety and Health Administration [OSHA]of the Respondent’s premises on November 8, 1979 – February 15, 1980 andNovember 8, 1979 -December 28, 1979, Citations were issued on or aboutJanuary 8, 1980, and onor about March 28, 1980, charging that Respondent violated sec. 5 (a)(2)of the Act.The January 8th Citation #1 alleged the serious violation of items # 1 -3, and Citation #2 alleged the willful violation of item #1.The March 28th Citation #1 alleged the serious violation of items # 4 -6; Citation #2 alleged the willful violation of item #2; and Citation #3alleged the other than serious violation of item #1 and 2.S:\\1984\\Processed\\80-0344 80-1968\\00000000\\08.tif\”Citation #1 alleged the serious violation of the standards at 29 CFR1910.1025(j)(2)(IV)(a); (j)(2)(IV)(b); (j)(3)(i)(a); (j)(1)(i);(j)(3)(i)(b); (n)(2)(i); (d)(4); (j)(2)(i)(a); (j)(2)(i)(b);(j)(3)(IV)(a); (1)(1)(i); (1)(1)(ii); (1)(1)(iii); (1)(1)(V)(a);(1)(1)(V)(d); (1)(1)(V)(g); (1)(2)(ii); and (n)(3)(i) in, respectively,items #1a, 1b, 1c, 4a, 1d, 2, 3, 4b, 4c, 4d, 5a, 5b, 5c, 5d, 5e, 5f, 5g,and 6.Citation #2 alleged the willful violation of the standards at 29 CFR1910.1025(j)(4)(i) and (k)(2)(i) in, respectively, items #1 and 2.Citation #3 alleged the other than serious violation of the standards at29 CFR 1903.16(a) and 1904.7, in, respectively, items #1 and 2.On or about April 7, 1980, the Respondent filed Notice of Contest to allitems of the Citations and the penalties proposed therefor.The pertinent sections of the Act and the standards are appended to thisdecision under appropriate titles.The Respondent contended that the Citations of March 28th were issuedprimarily to harass the Respondent into settling the charges broughtagainst it in the January 8th Citations. No testimony was taken on thataccusation and, regardless of why the Citations were issued, thedecision must be based on the evidence adduced at the hearing.The evidence made it very clear that the blood lead level of employeesexceeded permissible limits and that employees were exposed to lead thatexceeded the limits permitted by the cited standards. It was stipulatedthat the laboratory analysis figures showing exposure to lead wereauthentic and accurate. Converting those stipulated figures into thoserequired by the various standards, it is established that at least someof the Respondent’s employees were exposed to excessive lead…Tr.858-866, Exh. C-9.S:\\1984\\Processed\\80-0344 80-1968\\00000000\\09.tif\”As concerns item #1A of Citation #1, the employee Johnson testified thathe never received any written notification of his excessive blood leadlevel. I was very impressed with Johnson’s honesty; moreover, hisstatement to that effect was not contradicted…Tr. 31, 37, 45, 57, 58,75, 552, 773. I find that the Respondent was not in compliance with thestandard at29 CFR 1910.1025(j)(2)(IV)(a).As concerns item #1B of Citation #1, the employee Johnson testified thathe never received any written notification of temporary medical removalor benefits. His statement was not contradicted. Industrial HygienistTremblay’s testimony was to the same effect…Tr. 44, 45, 778, 779, 782.I find that the Respondent. was not in compliance with the standard at29 CFR 1910.1025(j)(2)(IV)(b).As concerns items #1C and 1D of Citation #I, Industrial HygienistTremblay testified that the only medical examinations and consultationsfor employees were those requested by Dr. Nemkof. That testimony was notcontradicted …Tr. 783. I find that the Respondent was not in compliance with thestandards at 29 CFR 1910.1025(j)(3)(i)(a) and (j)(3)(i)(b).As concerns items #2 and 6 of Citation #1, Industrial Hygienist Tremblaytestified that there were no records kept for the years 1978 and 1979;and that the Respondent’s supervisor (Bond) was not able to provide her withany … Tr. 744, 813, 884, 885. That testimony was not challenged. Item#6 was withdrawn [See Complainant’s brief, page 16].I find that the Respondent was not in compliance with the standard at 29CFR 1910.1025(n)(2)(i).As concerns item #3 of Citation #1, the evidence of all the witnessesclearly established the possibility of employee exposure at or above theaction level. Industrial Hygienist Tremblay testified that the Respondent’sS:\\1984\\Processed\\80-0344 80-1968\\00000000\\10.tif\”supervisor (Bond) told her there had been no monitoring since March 27,1978 … Tr. 745, 818. That testimony was not contradicted. I find thatthe Respondent was not in compliance with the standard at 29 CPR1910.1025(d)(4).As concerns item #4A of Citation #1, Industrial Hygienist Tremblaytestified that the medical surveillance program described by theRespondent’s supervisor (Bond) was merely \”representative\”….Tr. 871.That testimony was not contradicted. I find that the Respondent was notin compliance with the standard at 29 CFR 1910.3.025(j)(1)(i).As concerns items #4B and 4C of Citation #1, employee Johnson’stestimony established that biological monitoring was not made availableas required. Industrial Hygienist Tremblay testified that any biologicalmonitoring conducted by the Respondent was done on a \”representative\”basis. That testimony was not contradicted….Tr. 31, 40, 58. 69, 83,779, 871. I find that the Respondent was not in compliance with thestandards as required 29 CFR 1910.1025(j)(2)(i)(a) and (j)(2)(i)(b).A3 concerns item #4D of Citation #1, the Respondent did not provide anyphysician with the information required. I find that the Respondent wasnot in compliance with the standard at 29 CPR 1910.1025(j)(3)(IV)(a).As concerns items #5A, 5D, 5E, and 5F, the Respondent’s employees werenot provided with the required information. The testimony of employeeJohnson and Industrial Hygienist Tremblay to that effect was notcontradicted… Tr. 31-45, 773-782, 878-881. I find that the Respondentwas not in compliance with the standards at 29 CPR 1910.1025(1)(1)(i).(1)(l)(V)(a), (1)(1)(V)(d), and (1) (1) (V) (g).As concerns items #5B and 5C of Citation #1, there was no trainingprogram of any kind. I find that the Rospondent was not in compliancewith the standards at 29 CFR 1910.1025(l)(1)(ii) and (1)(1)(iii).S:\\1984\\Processed\\80-0344 80-1968\\00000000\\11.tif\”As concerns item #5G of Citation #1, the Respondent had no materials toprovide … Tr. 881. I find that the Respondent was not in compliancewith the standard at 29 CFR 1910.1025(1)(2)(ii).As concerns item #6 of Citation #1, it was withdrawn by the Complainant(see Complainant’s brief, page 16).As concerns item #1 of Citation #2, the employee Johnson testified thatthe Respondent’s supervisor (Bond) gave him pills to take so he\”wouldn’t get no lead poisoning\”. Supervisor Bond corroborated thattestimony … Tr. 40, 58, 68, 69, 77, 79, 538, 552- 558. The witnessMrs. Johnson’s testimony was to the same effect…Tr. 105, 109, 112. Thewitness Dr. Karlin testified that, at the request of the Respondent’ssupervisor (Bond) and vice- president (Sach), he had prescribedpenicillimine, a chelating agent, to two employees of the Respondentbefore examining either…Tr. 355, 363, 364.\”Chelation\” refers to treatment by which a drug combines with metal inthe body and the substance is then excreted. Prophylactic (orpreventive) chelation occurs when the chelating drug is administeredbefore, or in the absence of, symptoms of lead toxicity.On the evidence here, I find that at least one of the Respondent’semployees was administered chelating drugs before he showed signs oflead toxicity; and supervisory personnel of the Respondent eitherparticipated in such administration or at least condoned it. As aresult, I find that the Respondent did not \”assure\” that any of itsemployees did not \”engage in prophylactic chelation of any employee atany time.\” I find that the Respondent was not in compliance with thestandard at 29 CFR 1910.1025(j)(4)(i).As concerned item #2 of Citation #2, it was withdrawn by the Complainant(See Complainant’s brIef, page 16).As concerns item #1 of Citation #3, employee Johnson testified that some\”official-looking forms\” were posted near the time clock in September,1979…S:\\1984\\Processed\\80-0344 80-1968\\00000000\\12.tif\”Tr. 97. The Respondent’s supervisor (Bond) testified that the citationswere posted next to the time clock and on the side of the incineratorcontrol panels … Tr. 560. The Respondent’s vice-president (Sach)testified the citations were so posted on the advice of the Respondent’sattorney… Tr. 1166, 1177. Although Industrial Hygienist Tremblaytestified that there was nothing posted at the time clock, she didacknowledge that the citation was posted on the incinerator controlpanel. She said it couldn’t be seen when entering the room, and only onepage was visible because the other pages were taped behind it … Tr.881-884.On that evidence, I find that the Respondent had posted the citation\”unedited\” and \”in a prominent place\” where it was \”readily observable\”.I base that finding on the testimony of the witnesses and theprobability that the Respondent would have followed its attorney’sadvice about posting.The fact that the pages of the Citation were not posted individuallydoes not invalidate the posting. It is not always possible to post everypage in a place by itself and, in the conditions here, the Respondenthad posted in a practical and sufficient way to be available to theperusal of employees.I find that the Respondent was in compliance with the standard at 29 CFR1903.16(a).As concerns item #2 of Citation #3, Industrial Hygienist Tremblaytestified that the Respondent’s supervisor (Bond) admitted there were norecords [log and summary] of occupational injuries and illnesses for theyears 1978 and 1979. That testimony was not contradicted … Tr. 884,885. 1 find that the Respondent was not in compliance with the standardat 29 CPR 1904. 7\/.WILLFULAlthough some courts require a showing of malice on the part of theRespondent before there can be a finding of willful misconduct, Ibelieve theS:\\1984\\Processed\\80-0344 80-1968\\00000000\\13.tif\”better reasoned cases are to the contrary. However, all courts requiresomething more than a mere showing that a standard has been violated.To constitute a willful violation, the Complainant must show more thanan intentional act by the Respondent. There must be conduct that wouldconstitute complete indifference to the law, utter disregard of theconsequences, or similar behavior.A violation is willful in character if it was committed \”with either anintentional disregard of, or plain indifference to the Act’srequirements\” [See St. Joe Minerals Corp.. v. OSHRC, 647 F(2) 840 andthe Kus-Tum Builders case (76-2644 in 10 OSHC 1128)].As the Review Commission said in the Mel Jarvis case (77-2100 in 10 OSHC1052); \”The test of an employer’s good faith, for purposes ofdetermining willfulness, is an objective one., i.e., was the employer’sbelief concerning a factual matter or concerning the interpretation of astandard, reasonable under the circumstances.\”In fact, even knowledge of a standard and a subsequent violation of it,are not sufficient in themselves to prove a willful violation. Forexample, in the Wright & Lopez case (8 OSHC 1261) even though theRespondent had been cited for violations of the applicable standards onfour previous occasions, and had discussed the standards with OSHRCofficials, the Review Commission held that there was not a willfulviolation because the facts established the Respondent had made a goodfaith attempt at compliance.Conduct that would constitute \”complete indifference\” or \”utterdisregard of the consequences\” or similar behavior does not appear to bepresent in this case where, in a situation calling for medical judgment,the Respondent’sactions were in reliance on the opinions of physicians.S:\\1984\\Processed\\80-0344 80-1968\\00000000\\14.tif\”Whether the judgment of any physician was good or bad, the advice soundor unsound, the conduct proper or improper, are questions for a forumother than this; and I make no finding on such medical questions.I merely find that any chelation involving the Respondent’s employeeswas done with the advice or consent of one or more physicians.Dr. Milligan, who was experienced in lead-related medical conditions,testified by deposition that in 1975 and 1976 she was in charge of aprogram at Central Hospital that she had been led to believe was for thelead screening of employees of the Respondent…Deposition 8, 9. Aftershe saw the elevated lead levels of several employees, she agreed toBond’s request that they be prescribed Penicillimine … Deposition 17.She limited it to a 30 day trial because it was a chelating agent thatmight work or not … Deposition 18-20.She told Bond that the routine administration of chelating agents is adangerous practice; and employees with elevated lead levels should bekept out of the lead environment … Deposition 22. She testified that,when she told Bond about the dangers of Penicillimine, \”he did notappear to understand\”…Deposition 35, 36. Her testimony aboutPenicillimine was that it has \”very little therapeutic value\”, has\”limited therapeutic value\”, and \”could be therapeutic\”… Deposition 60- 63. She pointed out that, for \”Penicillimine therapy to he effective\”,it has to be continued for a long period of time and when the patient isno longer in a lead enviroment … Deposition 64. She said that\”Penicillimine might have been enough to chelate\” the Respondent’semployees if they were taken out of the lead environment … Deposition67. She concluded that Penicillimine is \”definitely a chelating agent\”with certain advantages and disadvantages compared to other chelatingagents…Deposition 62 – 64. She testified that she would not issue aprescription unless she thought it \”medically advisable\”; and that theprescriptions she gave \”were not prophylactic chelation therapy\”…Deposition 75, 79. Her final opinion about prophylactic chelation wasthat sheS:\\1984\\Processed\\80-0344 80-1968\\00000000\\15.tif\”is \”not sure that any such thing exists\”. ..Deposition 83, 84.Dr. Karlin testified that, when he told the Respondent’s supervisor(Bond) and vice-president (Sach) he planned to consult a specialist inillnesses concerning lead, the Respondent’s officers agreed with thatdecision…Tr. 358, 359, 363, 364. The Respondent’s supervisor (Bond)made the appointment for the employee, Johnson, to see a toxicologyspecialist and for the Respondent to pay all medical bills … Tr. 499 ,500. Bond testified he had unsuccessfully sought expert medical adviceat the Massachusetts General and the Peter Bent Brigham Hospitals aswell as from Dr. Karlin, the personal physician of the vice-president ofthe Respondent … Tr. 546. That testimony was not contradicted.The testimony of the Respondent’s vice-president (Sach) that leadsweating was stopped after November 8, 1979, and lead cable was sent outto be processed, also indicates that the Respondent was not indifferentto the consequences… Tr. 1136.HAZARD As testified to by the witness Dr. Baker, the hazard hereincluded the possibility of anemia, damage to the nervous system, kidneydamage, renal failure, and cancer … Tr. 613-615.WITNESS GARCIABecause of the confusion about the Garcia name, together with thewitness’ discharge from employment, I thought it best not to make anyfindings based on his testimony.FINDINGS OF FACTHaving heard the testimony, observed the witnesses, and examined theexhibits, the following additional Findings of Fact are made:1. At all times concerned, the Respondent regularly received, handled orworked with goods which had moved across state lines.S:\\1984\\Processed\\80-0344 80-1968\\00000000\\16.tif\”2. As concerns items #1A-5G of Citation #1 and item #1 of Citation #2,the conditions described exposed the Respondent’s employees sustainingserious of fatal harm because of the hazard of lead poisoning.3. The conditions described in item #2 of Citation #3 exposed theRespondent’s employees to sustaining harm because of the hazard ofexcessive lead.4. The Respondent’s conduct in item #1 of Citaion #2 was not willful.5. One or more officers or supervisory personnel of the Respondent knewthat employees were exposed to such hazards.CONCLUSIONS OF LAW1. At all times concerned, the Respondent was an employer engaged in abusiness affecting commerce within the meaning of the Act; and theOccupational Safety & Health Review Commission has jurisdiction over thesubject matter and the parties.2. At all times concerned, the Respondent knew, or with the exercise ofdue diligence should have known, of the alleged violations.3. On the dates in question, the Respondent was no in compliance withthe standards cited in items #1A-5G of Citation #1, and item #1 ofCitation #7 and item #2 of Citation #3, and the Complainant hassustained the burden of proving the Respondent violated sec. 5(a)(2) ofthe Act (sec. 654).4. The Complainant has not sustained the burden of proving theRespondent violated item #6 of Citation #1, or item #2 of citation #2,or item #1 of citation #3.5. The Complainant has not sustained the burden of proving theRespondent willfully violated item #1 of CItation #2.ORDERThe whole record having been considered, and due consideration havingbeen given to 29 U.S.C., sec. 666(j), and also taking into account theRespondent’sS:\\1984\\Processed\\80-0344 80-1968\\00000000\\17.tif\”testimony about the expenditure of $250,000 for plant improvement [Tr.1184] that will be helpful in protecting the health of employees, it isordered:1. Items #1A, 1B, 1C, 1D, 2, 3, 4A, 4B, 4C, 4D, 5A, 5B, 5C, 5D, 5E, 5F,5G of Citation #1 are all affirmed; and the following penalties areassessed: $100 for item #1A, $400 for item #2, $360 for item #3, $100for item #4A, $200 for item #5C, and $500 for item #5F.2. Item #1 of Citation #2 is affirmed as a serious violation, and apenalty of $100 is assessed therefor.3. Item #2 of Citation #3 is affirmed, and a penalty of $100 is assessedtherefor.4. Item #6 of Citation #I, item #2 of Citation #2, and item #1 ofCitation #3 are vacated, together with any penalties proposed therefor.SO ORDERED.FOSTER FURCOLO Judge, OSHRCDated: February 1, 1982 Boston, MassachusettsS:\\1984\\Processed\\80-0344 80-1968\\00000000\\18.tif\”APPENDIX THE ACTSection 654 [section 5(a)(2)] Employer \”…shall comply withoccupational safety and health standards…\”Section 666 [section 17(b)] \”…employer who has received a citation fora serious violation … of this Act … shall be assesseda civil penalty of up to $1,000 for each such violation.\” Section 666[section 17(c)] \”…employer who has received a citation fora violation of..this Act…specifically determined not to be of aserious nature, may be assessed a civil penalty of up to $1,000 for eachsuch violation.\”Section 666 [section 17(j)] \”…assess all civil penalties … givingdue consideration to … the size of the business … gravity of theviolation, the good faith of the employer, and the history of previousviolations.\”Section 666 [section 17(k)] \”…a. serious violation shall be deemed toexist … if there is a substantial probability that death or seriousphysical harm could result … unless the employer did not, and couldnot-know of the presence of the violation.\”STANDARDS The Standards at 29 CFR 1910.1025 as cited in Citation I(serious), Items 1a – 6(j)(2)(IV)(a) \”Within 3 working days after the receipt of biologicalmonitoring results, the employer shall notify in writing each employeewhose blood lead level exceeds 40 ug\/100 g: (A) of that employee’s bloodlead level…\”(Item la)(j)(2)(IV)(b) \”Within 5 working days after the receipt of biologicalmonitoring results, the employer shall notify in writing each employeewhose blood lead level exceeds 40 ug\/100 g: (B) that the standardrequires temporary medical removal with Medical Removal Protectionbenefits when an employee’s blood lead level exceeds the numericalcriterion for medical removal under paragraph (k)(1)(i) … \”(Item lb)(k)(1)(i) \”During .:he first year following the effective date of thestandard, the employer shall remove an employee from work having a daily8 hour TWA exposure to lead at or about 100 ug\/m3 on each occasion thata periodic and a follow-up blood sampling test … indicate that theemployee’s blood lead level is at or above 80 ug\/100 g of whole blood…\”S:\\1984\\Processed\\80-0344 80-1968\\00000000\\19.tif\”(j)(3)(i)(a) \”The employer shall make available medical examinations andconsultations to each employee covered under paragraph (j)(1)(i) … :(A) At least annually for each employee for whom a blood sampling testconducted at any time during the proceding 12 months indicated a bloodlead level at or above 40 ug\/100 g…\”(Item lc)(j)(1)(i) \”The employer shall institute a medical surveillance programfor all employees who are or may be exposed above the action level formore than 30 days per year.\”(Item 4a)[Action level: exposure to airborne concentration of lead of 30micrograms per cubic meter of air (30 ug\/m3 ) averaged over an 8 hourperiod](j)(3)(i)(b) \”The employer shall make available medical examinations andconsultations to each employee covered under paragraph (j)(1)(i)…: (B)Prior to assignment for each employee being assigned for the first timeto an area in which airborne concentrations of lead are at or above theaction level … \”(Item ld)(n)(2)(i) \”The employer shall establish and maintain an accurate recordfor each employee subject to medical surveillance…\”(Item 2)(d)(4) \”Where a … possibility of any employee exposure at or above theaction level, the employer shall conduct monitoring…\”(Item 3)(j)(2)(i)(a) \”The employer shall make available biological monitoring inthe form of blood sampling and analysis … to each employee coveredunder paragraph (j)(1)(i)…(A) At least every 6 months to each employeecovered under paragraph (j)(1)(i)…\”(Item 4b)(j)(2)(i)(b) \”The employer shall make available biological monitoring inthe form of blood sampling and analysis … to each employee coveredunder paragraph (j)(1)(i) … (B) At least every 2 months for eachemployee whose last blood sampling and analysis indicated a blood leadlevel at or above 40 ug\/100 g of whole blood…\”(Item 4c)(j)(3)(IV)(a) \”The employer shall provide an initial physicianconducting a medical examination or consultation…with the followinginformation:…\” [The lead regulation and appendices; a description ofemployee’s duties; the employee’s exposure level to lead; personalprotective equipment to be used; prior blood lead determinations; priorwritten medical opinions concerning employee](item 4d)S:\\1984\\Processed\\80-0344 80-1968\\00000000\\20.tif\”(1) (1) (i) \”Each employer…shall inform employees of the content ofAppendices A and B of this regulation.\”(Item 5a)(1) (1) (ii) \”The employer shall institute a training program for…allemployees who are subject to exposure to lead at or above the actionlevel…\”(Item 5b)(1) (1) (iii) \”The employer shall provide initial training…\”(Item 5c)(1) (1) (V) (a) \”The employer shall assure that each employee is informedof…The content of this standard…\”(Item 5d)(1) (1) (V) (d) \”The employer shall assure that each employee is informedof…The purpose and a description of the medical surveillance program,and the medical removal protection program…\”(Item 5e)(1) (1) (V) (g) \”The employer shall assure that each employee is informedof…Instructions to employees that chelating agents should not routinelybe used to remove lead from their bodies and should not be used at allexcept under the direction of a licensed physician…\”(Item 5f)(1) (2) (11) \”The employer shall provide, upon request, all materialsrelating to the employee information and training program to theAssistant Secretary and the Director.\”(Item 5g)(n) (3) (i) \”The employer shall establish and maintain an accurate recordfor each employee removed from current exposure to lead pursuant toparagraph (k) … \”(Item 6)The Standards at 29 CFR 1910.1025 as cited inCitation II (willful), Items 1 and 2(j) (4) (1) \”The employer shall assure that any person whom he retains,employs, supervises or controls does not engage in prophylacticchelation of any employee at any time.\”(Item 1)(k) (2) (i) \”The employer shall provide to an employee up to eighteen (18)months of medical removal protection benefits on each occasion that anemployee is removed from exposure to lead…\”(Item 2)S:\\1984\\Processed\\80-0344 80-1968\\00000000\\21.tif\”\”Other\” citations29 CFR 1903.16(a) \”…the employer shall immediately post suchcitation… at or near each place an alleged violation … occurred …Where, because of the nature of the employer’s operations, it is notpracticable to post the citation at or near each place … such citationshall be posted, unedited, in a prominent place where it will be readilyobservable…(Item 1)29 CFR 1904.7 \”Each employer shall provide, upon request, recordsprovided for in sections 1904.2, 1904.4, and 1904.5 for inspection …by any representative of the Secretary of Labor…\” [log and summary ofoccupational injuries and illnesses](Item 2)FOOTNOTES:[[1]] The portion of the lead standard which pertains to chelation, 29C.F.R. {sec} 1910.1025(j)(4), states:(i) The employer shall assure that any person whom he retains, employs,supervises or controls does not engage in prophylactic chelation of anyemployee at any time.[[2]] Bay State did not seek review of the judge’s ruling that it was inserious violation of 29 C.F.R. ? 1910.1025(j)(4), nor does Bay Statetake exception to the judge’s penalty assessment.[[3]] 29 C.F.R. ? 1903.16 provides, in pertinent part:(a) Upon receipt of any citation under the Act, the employer shallimmediately post such citation, or a copy thereof, unedited, at or neareach place an alleged violation . . . occurred . . . [or if] it is notpracticable . . . such citation shall be posted, unedited, in aprominent place where it will be readily observable by all affectedemployees…The employer shall take steps to ensure that the citation is notaltered, defaced, or covered by other material.”