“Docket No. 88-0391 SECRETARY OF LABORComplainant, v. HACKNEY,INC., Respondent.OSHRC Docket No. 88 -0391[[*]]DECISIONBEFORE: FOULKE, Chairman; WISEMAN and MONTOYA,CommisionersBY THE COMMISSION:Hackney, Inc. operates a pipe ,manufacturing plant in WestMemphis, Arkansas.\u00a0 Following a 1987 inispection of its facility, the OccupationalSafety and Health Adminstration (\”OSHA\”) issued to Hackney a citation allegingfour willful violations of the OSHA noise standard.\u00a0 Three of the items are beforethe Commission on review.Item 2 of the cotation alleged that Hackney violated thenoise standard at 29 C.F.R. ? 1910.95 (g) (1) by failing to institute an audiometrictesting program for all employees exposed to noise levels above 8-hour time weightedaverage (\”TWA\”) of 85 decibels.\u00a0 Item 3 charged Hackney with volated 29C.F.R. ? 19910.95(i)(5) by failing to properly supervise employees in the correct use ofhearing protectors.\u00a0 Finally, item 4 alleged that Hackney violated 29 C.F.R. ?1910.95(i)(5) by failing to comply with the compliance officer’s request to turn overrecords of monitoring conducted in 1982.\u00a0 Penalties of $1000 were proposed for eachitem.The matter was heard before Review CommissionAdminstrative Law Judge Louis G. LaVecchia.\u00a0 The judge vacated item 4, but affirmeditems 2 and 3 as nonserious and assessed a penalty of $500 for each of the items.\u00a0For the reasons that follow, we reverse the judge, vacate items 2 and 3, affirm item 4,and assess a penalty of $500.A. The alleged willful violations of section 1910.95(g)(1)and 1910.95(i)(5)During the inspection, Compliance Officer Linda Sullivannoticed that several employees were wearing their hearing protectors, in this caseearmuffs, over knit caps and baseball caps.\u00a0 She testified that this prevented theearmuffs from properly coverings the ears.\u00a0 The compliance officer also testifiedthat when she pointed out the condition to the earmuffs were worn properly.\u00a0Following the, the Secretary cited Hackney for a willful violation of section1910.95(g)(1)2 for its failure to have an audiometric testing program.Hackney makes the threshold argument that the Secertaryhas failed to establish that employees were exposed to an 8-hour time-weighted average of85 decibels or greater. Such a showing is a prerequiste to requirement to requiring anemployer to comply with sections 1910.95(g)(1) and 1910.95(i)(5).\u00a0 See sections1910.95(g)(1) and 1910.95(i)(5)3.The Secretary’s evidence of employee exposure comes fromthree full-shift are noise samples the compliance officer took in Bay 4 of the plant,using a sound level meter and three dosimeters.\u00a0 The compliance officer testifiedthat she was not allowed to get closer than four feet from the employees of to talk tothem. \u00a0 She therefore took area samples rather than personals by placing dosimeterson metal structures or equipment near the employee workstations.\u00a0 The record does notshow how far away the dosimeters were from the employees.\u00a0 One of the workstationssample registured a noise level of 90.1 dBA, which exceeded the action level of 85 dBA.\u00a0 The other two sample yielded results below 85 dBA.\u00a0 The compliance officeradmitted that placing the dosimeter on metal sheveles subjected them to vibrational noise,but the record fails to disclose the extent to which this vibration might distort noiselevel readings.Judge LaVecchia found that the sample that showed exposureof 90.1 dBA established employee exposure to noise above the action level.\u00a0 Herejected Hackney’s claims that the sampling flawed because it was not taken within theemployees’ hearing zone.\u00a0 He also found that the record showed that Hackney preventedthe compliance officer from conducting her durveys within the hearing zone of it \\semployees and that Hackney could not benefit from these actions.The Secretary argues that the judge’s finding that Hackneyprevented personal sampling constitutes a credibility determination that is entitled tosubstantial weight and deference.\u00a0 Citing Trumid Constr. Co., 14 BNA OSHC1784, 1787-88, 1990 CCH OSHD ? 29,078, p. 38,858 (No. 86-1139, 1990), she contends thatbecause she was prevented from taking personal samples, the Commission should look at theevidence in toto.\u00a0 The Secretary also points out that, in addition to the noisereading establishing an 8-hour TWA exceeding 85dBA, Hackney admitted, in its brief beforethe Commission, that at times noise levels could exceed 85 dBA.\u00a0 The Secretarycontends that the best evidence she was allowed to obtain established and 8-hour TWAexceeding the 85-dBA limit.The Secretary’s argument that the judge’s findingconstituted a credibility determination that deserves deference is not persuasive.\u00a0The Commission normally will not disturb a judge’s credibility finding because it is thejudge \”who has lived with the case, heard the witnesses, and observed theirdemeanor.\”\u00a0 C. Kaufman, Inc., 6 BNA OSHC 1295, 1297, 1977-78 CCH OSHD ? 22,481,p. 27,099 (No. 14249, 1978).\u00a0 However, to warrant Commission deference, the findingmust specifically resolve conflicting testimony or doubts as to credibility.\u00a0Typically, such a finding would involve the identification of testimony that isconflicting and the providing of reasons for crediting the testimony of one witness overanother or for failing to credit a witness whose testimony is neither contradicated norimpeached.\u00a0 P & Z Co.m 6 BNA OSHC 1189, 1192, 1977-1978 CCH OSHD ? 22,413, p.27,024 (No. 76-431, 1977).The judge’s conclusion that Hackney’s officials interferedwith the inspection meets none of these criteria.\u00a0 Here, the judge’s finding restssolely on statements from the compliance officer that she was not allowed to talk toemployees or do personal sampling. Those statements, however, do not demonstrate thatHackney’s management officials stopped her from talking to the employees or takingpersonal samples.\u00a0 In fact, it was brought out at oral argument that thesecircumstances may have been due to the employees’ choice.[[4]] Moreover, the judge neverstated that his conclusion involved a credibility finding. Rather, it would appear thathis conclusion was based on his subjective assessment of the probability of events.\u00a0Therefore, we conclude that the judge’s conclusion was not a credibility finding, AllPurpose Crane, Inc., 13 BNA OSHC 1236, 1239, 1986-87 CCH OSHD ? 27,877,p. 36,550 (No.82-284, 1987), and we decline to defer to it. Archer-Western Contrac. Ltd., 15 BNA OSHC1013, 1016, 1991 CCH OSHD ? 29,317, p. 39,377 (No. 87-1067, 1991), petition for reviewfiled, No. 91-1311 (D.C. Cir. July 1, 1991).The evidence of interference with the compliance officer’sability to conduct the inspection was limited to nonspecific statements that indicatedonly that the compliance officer was not allowed to talk with employees or attachdosimeters to them. There was no showing that the prohibition was enforced or induced byHackney’s management, nor is there a basis from which to draw such an inference.\u00a0Therefore, we conclude that the evidence is insufficient to establish that Hackneyobstructed the inspection.Given the Secretary’s failure to establish that Hackneyobstructed the inspection, we must determine whether the record evidence establishes thatHackney’s employees were exposed to the threshold noise levels. To be valid, soundmeasurements generally must be taken within the employee’s hearing zone. SeeCollier-Keyworth C., 13 BNA OSHC 1208, 1211, 1986-87 CCH OSHD ? 27,867, p. 36,510 (No.80-2848-1987). The readings here were not taken within the \”hearing zone\” of thetwo employees identified at thtat station. Rather, the dosimeter was located on a metalshelf at an unknown distance from the employees exposed to the noise. Moreover, thecompliance officer conceded that the vibrations from the metal could affect the integrityof the sample. Because the sample was not take in the employee’s hearing zone and couldhave been distorted by vibrations from the metal shelf, we cannot conclude that thehearing zone noise levels exceeded 85 dBA.We also do not find that Hackney’s statement, made in itsinitial brief on review that, at certain times, noise levels would exceed 85 dBA, supportsthe Secretary’s contention that employees were exposed to the action level. An admissionthat employees were exposed to occasional transient noise levels exceeding 85 dBA does notestablish that the time weighted average of noise exposure would exceed a TWA of 85 dBAover an 8-hour period. The record reveals neither the duration of the noise above 85 dBAnor the actual noise levels above 85 dBA. Without adequate sampling, which we do not have,the record does not establish that Hackney’s employees were exposed to an 8-hour TWA of 85dBA or greater.[[5]] Accordingly, items 1 and 2 must be vacated.B. The alleged willful violation of section1910.95(m)(4)[[6]]During the 1987 inspection, the compliance officerrequested copies of the results of a noise survey conducted at the Hackney facility in1982. Hackney’s Environmental and Safety Director, Jerry Riddles, stated that Hackney hadthe monitoring results, and told the compliance officer on three separate occasions thatthe company’s attorney would have to be contacted before they would be released. However,Hackney did not make a copy of the noise survey available during the inspection, and forthat reason, the Secretary cited Hackney for a willful violation of section 1910.95(m)(4).The judge vacated the item on the grounds that section1910.95(m)(3)(i)[[7]] provides that the noise records must be retained for only two years.Citing Erie Bottling Corp. v. Donovan, 539 F.Supp.600.606-07 (W.D.Pa. 1982), the judgeheld that the Secretary is not entitled to records that are not required to be maintained.He also noted that the records were provided during discovery.The Secretary argues that the judge ignored the lastsentence of the standard that incorporates section 1910.20(a)-(e) and (g)-(i). She notesthat section 1910.20(b)(2)[[8]] specifically includes employment exposure records amongthose to which employers must provide access regardless of whether they are required to bemaintained under specific standards. Because section 1910.20(b)(2) is incorporated insection 1910.95(m)(4), the Secretary contends that failure to provide the noise surveyrecords when requested constituted a violation of the cited standard.Hackney maintains that section 1910.20(b)(2) isinapplicable. \u00a0 It points out that section 1910.20(d) states that \”[u]nless aspecific occupational safety and health standard provides a different period of time, eachemployer shall assure the preservation and retention of records as follows….\”Hackney claims that because section 1910.95(m)(3)(i) sets its own two-year period forrecord retention, the provisions of section 1910.20 by its own terms do not apply.We agree with the Secretary that, under section1910.20(b)(2), Hackney was required to make available to the Secretary all monitoringrecords that it had in its possession, regardless of whether it was under a regulatoryduty to maintain the records. Even though the records were turned over during discovery,Hackney’s refusal to make them available when the compliance officer requested them duringthe inspection was a clear violation of the standard.Hackney’s argument that the record retention periods ofsection 1910.20 do not apply because they were preempted by a noise standard that appliedspecifically to retention periods for noise monitoring records is correct as far as itgoes. However, Hackney is not being cited for failing to maintain records.\u00a0 TheSecretary alleges that Hackney failed to make avaialble those employee exposure recordsthat it had in its possession.\u00a0 There is no specifically applicable noise standardthat preempts the applicability of section 1910.95(m)(4), set forth Hackney’s obligationto make its noise records available to the Secretary \”whether or not the records aremandated by specific occupational safety and health standards.\” ? 1910.20(b)(2).Contrary to the judge’s holding, Erie Bottling does notcontrol the disposition of this item.\u00a0 In Erie Bottling, the court declined to orderan employer to turn over private employee medical records that were not required to bemaintained under the Act, specifically because of its concern for employee privacy. 539 F.Supp. at 607.\u00a0 Here, there is not even a suggestion that employee privacy concernsmight be compromised by requiring Hackney to \”provide upon request\” these plantnoise records.\u00a0 Thus, Erie Bottling is inapposite. Accordingly, the judge is reversedand the item affirmed.WillfulnessAlthough Hackney failed to comply with the standard, wefind that the record fails to support a conclusion that the violation was willful.\u00a0 Aviolation iw willful if committed \”with intentional, knowing or voluntary disregardfor the requirements of the Act or with plain indiffernece to employee safety.\”Williams Enterp., 13 BNA OSHC 1239, 1256, 1986-87 CCH OSHD ? 27,893, p. 36,589 (No.85-355, 1987); Asbestos Textile Co., 12 BNA OSHC 1062, 1063, 1984-85 CCH OSHD ? 27,101,p.34,948 (No. 79-3831, 1984). A willful violation is differentiated from a nonwillfulviolation by a heightened awareness — of the illegality of the conduct or conditions –and by a state of mind — conscious disregard or plain indifference.\u00a0 General MotorsCorp., Electro-Motive Div., 14 BNA OSHC 2064, 2068, 1991 CCH OSHD ? 29,240, p. 39,168(No. 82-630,1991)(consolidated); Williams, 13 BNA at 1256-57, 1086-87 CCH OSHD at p.36,589. \u00a0 The willfulness charge relates to the employer’s underlying state of mindwhen it committed the violation.\u00a0 General Motors, 14 bna OSHC at 2069, 1991 CCH OSHDat p. 39,168.\u00a0 However, a violation is not willful if the employer shows that it hada good faith opinion that the cited condition did not violate the standard. Mel JarvisConstr. Co., 10 BNA OSHC 1052, 1053, 1981 CCH OSHD ? 25,713,p. 32,060 (No. 77-2100,1981).Here, there is no evidence that Hackney’s underlyingmotive for not providing the records to the compliance officer was willful.\u00a0 Thecompliance officer testified that Riddles, Hackney’s environmental and safety director,told him that he wanted to contact Hackney’s attorney before turning over therecords.\u00a0 Although Riddles did not act with dispatch in securing the opinion ofHackney’s attorney, we cannot say that this lack of diligence establishes that theviolation was willful.\u00a0 See Marmon Group, Inc., 11 BNA OSHC 2090, 2092, 1984 CCH OSHD? 26,975, p. 34,643 (No. 79-5363, 1984).\u00a0 Moreover, although it appears to have beenan afterthought and not the reason Hackney turned down the request, Hackney’s argumentthat is was not required to provide the records because section 1910.95(m)(3)(i) no longerrequired that they be retained is not unreasonable and would have provided an objectivegood faith basis for Hackney to believe it was excused from compliance. See Monfort ofColorado, Inc., 14 BNA OSHC 2055, 2062-63, 1991 CCH OSHD ? 29,246, p. 39,188-87) (No.87-1220, 1991)(good faith belief must exist at time of violation). Accordingly, weconclude that under these circumstances, the Secretary has failed to establish thatHackney’s underlying motive in not providing the records was willful.Order and PenaltyHackney is a large corporation that employed approximately68 employees at this facility at the time of the inspection.\u00a0 Hackney’s failure tomake employee noise exposure records available to the Secretary during the inspectioncould have deprived the Secretary of information vital to the proper conduct of theinspection and, therefore, could have adversely affected her ability to fulfull herobligation to ensure employee safety. Under these circumstances, we find a penalty of $500to be appropriate.Accordingly, the judge’s decision is reversed. Items 2 and3 of the willful citation are vacated.\u00a0 Item 4 is affirmed as other-than-serious, anda penalty of $500 is assessedEdwin G. Foulke, ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: March 6, 1992\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0SECRETARY OF LABORComplainant, v. HACKNEY,INC., Respondent.\u00a0APPEARANCES:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Daniel Curran, Esquire\u00a0Dallas, Texas\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0For the ComplainantRobert E. Rader, Jr., Esquire\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Dallas, TexasFor the Respondent.DECISION AND ORDERLaVecchia, Judge:This is a proceeding brought before the OccupationalSafety and Health Review Commission (\”the Commission\”) pursuant to Section 10 ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651 et. seq. (\”theAct\”).\u00a0 Respondent contests four alleged willful violations of the occupationalnoise standard, which are discussed below.The case arose after the Occupational Safety and HealthAdministration (\”OSHA\”) inspected Hackney’s West Memphis, Arkansas plant. \u00a0Hackney is a division of Trinity Industries, Inc.\u00a0 The West Memphis plantmanufactures pipe and has 68 employees.\u00a0 )Tr. 28-29; 37).\u00a0 The inspection beganon February 24, 1983, but was not completed until November 20, 1987,\u00a0\u00a0becauseHackney initially resisted it. See Donovan v. Trinity Industries, Inc., 824 F.2d634 (8th Cir. 1987).As a result of the inspection, OSHA issued two citations.The first alleges willful violations of 29 C.F.R. ?? 1910.95(d)(3), 1910.95(g)(l),1910.95(i)(5) and 1910.95(m)(4), and proposes a penalty of $1,000 for each violation. Thesecond alleges \”other\” violations of ?? 1904.2(a) and 1910.1200 (f) (4) (i) ,which were withdrawn at the hearing. (Tr. 3-4). The hearing took place on December 9,1988. No additional persons intervened.29 C.F.R. 1910.95(d) (3) The cited standard provides as follows: Monitoring shall be repeated whenever a change in production, process, equipment or controls increases noise exposures…. The subject standard, as well as the othercontested standards, supra, are required by 29 C.F.R. 1910.95(c)(l), which provides thatan \”employer shall administer a … hearing conservation program … wheneveremployee noise exposures equal or exceed an 8-hour time-weighted average sound level (TWA)of 85 decibels….\” (Tr. 15) . The four contested standards apply to Hackney’s WestMemphis plant, therefore, only if the evidence demonstrates its employees were exposed toaction-level noise.Linda Holt Sullivan is the OSHA complianceofficer (\”CO\”) who inspected Respondent’s West Memphis plant. She has been anindustrial hygienist CO since 1985 and has had extensive training with OSHA. She has amaster’s degree in biological sciences. Her undergraduate studies included experiments inthe physics of sound in mock industrial settings. (Tr. 29-35). She testified about herinspection, which took place from November 18 through November 20, 1987. She met withmanagement officials, conducted a walkaround and took full-shift noise samplings. (Tr. 36;40; 56-57; 74).Sullivan used a sound level meter to screennoise levels in various bays in the plant during her walkaround on November 19. Herscreening indicated levels ranged from the low 70’s up to 102 decibels. Sullivan explainedthat screening determines areas that need full-shift sampling. She calibrated the meterbefore and after the screening to ensure its accuracy. (Tr. 45-57; Exh. C-1; Exh. C-2).Sullivan conducted three full-shift areasamplings in Bay 4 on November 20, using her sound level meter and three dosimeters. Sherecorded her findings on noise survey report forms. She explained that sound level meterreadings, which are like spot checks, must be taken to ensure correlation with dosimeterdata, which are accumulated readings, but that citation information can only be based ondosimeter data. The sound level meter readings she took were within an acceptable range ofthe dosimeter readings. (Tr. 46; 56-61; 64-65; 68-71; Exh. C-3; C-4).Two of Sullivan’s samplings did notdemonstrate action-level noise, and she did not recommend citations on the basis of thosesamplings. She took her third sampling in the area of a compressor and other operatingequipment in Bay 4, where employees David Granger and J. C. Gary were working. She placeda dosimeter on a shelf near their work station, where she took accumulated readings over aseven hour and 49 minute period. She also took frequent sound level meter readings of thearea during this period. Sullivan recommended a citation on the basic of this samplingbecause the dosimeter reading showed an eight-hour TWA of 90.1 decibels on the A scale(\”dbA\”) and because Granger and Gary were exposed to the condition. Although shedid not testify about how much time Gary spent at the work station, she said Granger was\”pretty much\” at the station the entire day. (Tr. 51-52; 56-69; 76-82; 121-22;134; 139-40; 149-152; 155-61; 164; 171; Exh. C-3; C-4; C-6; C-7).Sullivan’s third noise sampling is the onlyone that establishes employee exposure to action-level noise. Its findings appear onExhibit C-5. Sullivan testified that she calibrated the dosimeter she used both before andafter taking the third sampling and that it was working properly. There were lines drawnthrough the dosimeter calibration information on Exhibit C-5. Sullivan not know why thelines were drawn; she did not do it and did not know who had. (Tr. 47-48; 62-63; 123;137-39).Sullivan further testified that the factlines were drawn through the information did not affect any of the calibration data. Ifthe dosimeter had not been working properly, she would have drawn lines across the entirefront of the form to show the sampling was invalid. She has exclusive custody of herdosimeters and is responsible for calibrating them and sending them for their yearlychecks. She would have known if there had been a problem with them. She still has thedosimeter she used in the third sampling; there are no problems with it. (Tr. 136-39; 148;165-66). The undersigned judge did not admit ExhibitC-5 into evidence, but did allow Sullivan to testify about the findings of her thirdsampling. Her testimony was credible and her expertise in conducting occupational noisesurveys was. apparent. On balance, Sullivan’s testimony demonstrates the dosimeter used inthe third sampling was working properly and accurately recorded noise levels in thesurveyed area. The evidence demonstrates her sound level meter was also working properly.I find the results of the third sampling show that employee Granger was exposed toaction-level noise and that the contested standards apply to Respondent’s West Memphisplant. (Tr. 131-32; 139; 149-164; Exh. C-3; C-4). Having found the standards apply, I must nowdecide whether the evidence demonstrates a violation of 1910.95(d) (3). Sullivan testifiedthat during the walkaround, her sound level meter readings indicated an impact drill wasrunning at about 101 to 102 decibels. She saw the drill operating for about ten minutes onthe walkaround and said it was not operating very consistently the day she took hersamplings. Jerry Riddles, Trinity’s corporate safety environmental director, told hernoise level monitoring had been done in 1982. He also told her he felt noise levels wereprobably less at the time of the inspection because production was down. Sullivan askedhim if monitoring had been done since the drill had been installed; he said it had not.She recommended the citation because Hackney had added a piece of equipment with thepotential to increase noise and had not remonitored noise levels. (Tr. 39; 72-75; 86-87).Although the record demonstrates Respondentdid not remonitor sound levels after the installation of the impact drill, it does notdemonstrate noise levels at the plant increased after the drill was installed. Sullivanherself testified the drill was operating inconsistently while she was there. Moreover,there was no evidence to controvert Riddles’ statement that noise levels were probablylower at the time of the inspection than they were in 1982. Because the evidence does notestablish a violation of 1910.95(d)(3), this item of the citation must be vacated.29 C.F.R, 1910,95(g)(l) The cited standard provides as follows: The employer shall establish and maintain an audiometric testing program as provided in this paragraph by making audiometric testing available to all employees whose exposures equal or exceed an 8-hour time-weighted average of 85 decibels.Respondent does not dispute that it does notprovide audiometric testing. It contends, rather, that the Secretary failed to proveemployee exposure to action-level noise. It points out that Exhibit C-5, the basis of theSecretary’s citation, was not admitted into evidence. Notwithstanding, as discussed above,the undersigned judge has found that Sullivan’s testimony about her third samplingdemonstrates employee exposure to action-level noise.Respondent further contends that Sullivan’s third sampling was flawed because it was nottaken within the employees’ \”hearing zone,\” which the OSHA Industrial HygieneTechnical Manual defines \”as a sphere within a two foot diameter surrounding thehead.\” Chapter VI, E.l.d.(1). It notes the Commission has held that soundmeasurements must be taken within the employee’s hearing zone, by either holding a soundlevel meter microphone within the employee’s hearing zone, or by having the employee weara dosimeter throughout the workday. Collier-Keyworth Co.,\u00a0 OSAHRC , 13 BNAOSHC 1208, 1211, 1987 CCH OSHD 27,867 (No. 80-2848, 1987), vacated on other grounds, 13BNA OSHC 2165, 1989 CCH OSHD 28,515 (1989).Respondent points out that Sullivan conducted her third sampling by placing the dosimeteron metal shelving some feet away from Granger and Gary, and that no measurements weretaken within their hearing zone. It notes Sullivan testified that when dosimeters areplaced on metal, vibrational noise can cause a higher reading. (Tr. 122-23). Respondentalso points out there was no evidence regarding how long Granger and Gary worked in thesurveyed area during the day or how long they were exposed to any particular noise level.Respondent’s arguments must be considered inlight of the circumstances under which Sullivan conducted her surveys. Sullivan testifiedthere are two kinds of noise samples – area samples and personal samples. She acknowledgedRespondent’s employees were moving around in the areas she surveyed and said that whenemployees are extremely mobile it is advisable to conduct personal samplings. Sheconducted area samples, however, because she could not conduct personal samples.Respondent did not allow her to get within four feet of its employees or to talk to them.She therefore had very little choice in her sampling areas. (Tr. 57-58; 117; 123; 126;158; 171; 176; 182). Since the record shows Respondent prevented Sullivan from conductingher surveys within the hearing zone of its employees, it may not now benefit from itsconduct by complaining that her surveys are flawed for that reason.Moreover, even though Respondent assertsthere is no evidence about how long Granger and Gary worked in the surveyed area, Sullivantestified Granger was \”pretty much\” at the surveyed work station the entire day.(Tr. 171). Respondent’s argument that Sullivan’s third sampling was flawed is thereforerejected.Respondent’s final argument is that itshearing conservation program exceeds the standard because, unlike the standard, it doesnot wait until employees suffer a hearing loss before requiring them to wear protection.Jerry Riddles, Trinity’s corporate safety environmental director, has been responsible forthe West Memphis plant’s hearing conservation program since 1976. He testified theprogram’s action level is 82 decibels and requires that all plant employees wear hearingprotection and undergo training. He said the hearing protection employees use ensures theyare seldom exposed to over 70 decibels. (Tr. 4-8; 17; 22-27; Exh. R-1; R-2; R-3; R-4).Sullivan testified Riddles told her hearing protection use was mandatory at levels above82 decibels and that training was conducted at the facility. She acknowledged that allplant employees wore approved hearing protection. (Tr. 39; 103; 114-15; Exh. C-2).Respondent urges that because it alreadyenforces hearing protection, the ultimate remedy of the occupational noise standard, thereis no reason to conduct audiometric testing since it would add nothing to the safety orhealth of its employees. Respondent asserts its program complies with the purpose of thestandard, which is to prevent hearing loss. It also asserts the likelihood its employeeswould suffer hearing loss is remote, since they are never exposed to noise in excess of 70decibels. Respondent concludes that since its failure to conduct audiometric testing hasno direct or immediate relationship to safety or health, and since the possibility ofinjury is remote, any violation must be classified as de minimus.The Secretary, however, contends Respondentis estopped from arguing it is not in violation of the standard because of a previousdecision involving Hackney’s Enid, Oklahoma, facility. Hackney. Inc., 88 OSAHRC 22\/A3, 13BNA OSHC 1901, 1988 CCH OSHD 1 28,279 (Botkin, J., No. 86-1322, 1988), aff’d, 895 F.2d1298 (10th Cir. 1990).In that case, which involved the same hearingprogram at issue in this case, the First Circuit affirmed Judge Botkin’s holding thatHackney was in nonserious violation of the noise standard because it failed to give itsemployees the audiometric testing the standard requires. The Court rejected Respondent’sclaim that its program was superior to the standard, finding it lacked a means ofdetermining whether employees were complying with the program or whether the protectionwas effective. The Court also found Respondent’s program deprived both the employer andOSHA of the information necessary to ascertain if employees’ hearing remained undamaged byworkplace noise. Id. at 1301. In light of this decision, Respondent’s contentionthat the citation must be classified as de minimus cannot succeed.Based on the foregoing, I find thatRespondent’s failure to conduct audiometric testing violated 1910.95(g) (1). The Secretaryurges the violation should be classified as willful. I will address the characterizationof the violation infra, after determining whether Respondent was in violation of the tworemaining contested standards.29 C.F.R. 1910.95(i)(5) The cited standard provides as follows: The employer shall ensure proper initial fitting and supervise the correct use of all hearing protectors.Sullivan testified she recommended thesubject citation because during her inspection she saw three employees wearing earmuffsimproperly, with the tops of the muffs resting on the tops of caps they were wearing. Shesaw one employee wearing his muff improperly during her walkaround, but did not photographhim or mention him to management. She saw two more employees, David Granger and DavidBusby, wearing muffs improperly the next day. She photographed them and mentioned them toa management official, who responded that employees were told how to wear muffs correctly.She did not remember which manager it was, but said it was Riddles, Grey Hays or NeilForeman, since they were the ones that accompanied her that day. To her knowledge, themanager did not correct the situation. Sullivan said it is \”quite obvious\” ifearmuffs are not being worn properly. (Tr. 36; 76-78; 80-85; 123-26; Exh. C-6; C-7; C-8).Respondent contends that to establish aviolation of the subject standard, the Secretary must prove both (1) that employees wereexposed to action-level noise, and (2) that they had suffered a significant thresholdshift (\”STS\”) in hearing, such that they were required to wear hearingprotection. 29 ? C.F.R. S 1910.95(g)(8)(A). It concludes that since the Secretary provedneither, she has not established a violation. As I have already found the evidencedemonstrates employee exposure to action-level noise, I need not address Respondent’sfirst argument. However, I will address its second.The standard does require that employees useprotection only after they have suffered an STS in hearing, and there is no evidence ofthis in the record. However, Respondent’s failure to conduct audiometric tests made itimpossible for OSHA to determine if any employee had undergone an STS. Hackney, supra,at 1301. Respondent may not, therefore, benefit from its own failure to conductaudiometric tests by complaining that the Secretary did not prove employees had sufferedan STS in hearing.Respondent further contends, however, thatthe three instances of improper earmuff use Sullivan observed were isolated instances ofemployee misconduct. It points out Sullivan herself testified she observed the condition\”in an isolated type incident on the walkaround.\” (Tr. 83). It also points outSullivan testified Hackney’s program required all employees to wear hearing protection andthat they did in fact wear protection. (Tr. 103: Exh. C-2). It notes Riddles testified,and Sullivan acknowledged, that the program was enforced and employees were trained. (Tr.17; 39).Respondent asserts there is no evidence thatmanagement took no corrective action after Sullivan called the condition to its attention.She did not mention the first employee she observed to management at all. And, while shedid mention the other two employees to management, she did so outside of Bay 4. She had noknowledge whether management corrected the situation, and did not testify that employeescontinued to wear protectors incorrectly after she brought them to management’s attention.(Tr. 83-84).Respondent urges the citation should bevacated, since it did not know and could not have foreseen that two or three employees,out of 68, would wear their protectors improperly. In support of its position, it cites toThe Duriron Co., Inc., 83 OSAHRC 22\/A2, 8 BNA OSHC 1575, 1578, 1978 CCH OSHD 22,918(Brenton, J., No. 77-2847, 1978). In that case, Judge Brenton vacated the citation as anisolated incident because the evidence showed the employer required hearing protection andall employees except one were wearing protection.To prove that a violation is the result ofunpreventable employee misconduct, Respondent must show that it both established andeffectively communicated work rules designed to prevent the violation. JensenConstruction Co., 79 OSAHRC 49\/D3, 7 BNA OSHC 1477, 1479, 1979 CCH OSHD 23,664 (No. 761538, 1979). The record demonstrates Respondent required its employees to wear hearingprotection. However, it does not demonstrate Respondent instructed employees to not wearearmuffs over caps or hats or otherwise specifically trained them about the proper use ofearmuffs.Riddles testified Hackney trained its employees. Sullivan testified management told heremployees were trained and \”told how to correctly wear\” earmuffs. Riddles toldher \”training was done\” at the plant. (Tr. 17; 39; 83). However, thesestatements do not constitute evidence that Respondent gave specific instructions thatwould have prevented the violations. Therefore, Respondent has not shown the violationswere the result of unpreventable employee misconduct. Further, Respondent’s reliance on Duriron,supra, is misplaced. While the case was directed for review, the portion of thecase that dealt with hearing protection was not reviewed by the Commission and has noprecedential value. Consequently, a violation of 1910.95(i)(5) has been shown.29 C.F.R. 1910.95(m)(4) The cited standard provides as follows: All records provided by this section shall be provided upon request to employees, former employees, representatives designated by the individual employee, and the Assistant Secretary. Sullivan testified she recommended thesubject citation because Riddles did not give her access to the West Memphis plant’s 1982noise monitoring results, even though he had them. (Tr. 85-86).Respondent, however, points out that1910.95(m)(4) is modified by 1910.95 (m)(3) , which provides that records of noiseexposure measurements shall be retained for two years. It contends that since it conductedits survey in 1982, and since such records need only be kept for two years, then under thestandard it had no duty to provide or even have the records when Sullivan requested them. ErieBottling Corp, v. Donovan, 539 F. Supp. 600, 606-07 (W.D. Pa. 1982). That case heldthe Secretary is not entitled to records that are not required to be maintained by theAct.Respondent also points out Riddles was notsure he should turn the records over when Sullivan requested them. (Tr. 86). He told herhe would have to check with Hackney’s counsel, who gave the records to the Secretary inresponse to her request for production of documents. Respondent asserts the Secretaryshould have withdrawn the citation after it gave her the records.Since Respondent was not required to keepnoise monitoring results for more than two years, it was not required to have its 1982records when Sullivan requested them and, accordingly, had no duty to provide them to her.Erie Bottling Corp., supra. Further, even though Respondent initially didnot give OSHA its records, its counsel apparently provided the records to the Secretaryduring discovery. Since the record does not show a violation of 1910.95(m)(4), this itemof the citation must be vacated.Whether the Violations were WillfulHaving found Respondent in violation of ??1910.95(q)(l) and 1910.95(i)(5), the undersigned judge must now decide whether theviolations were willful. To prove a willful violation, the Secretary must show it\”was committed with intentional disregard of the Act’s requirements or plainindifference to workers’ safety.\” R. D. Andersen Constr. Co., Inc., 86 OSAHRC6\/A14, 12 BNA OSHC 1665, 1669, 1986-87 CCH OSHD 41 27,500 (No. 81-1469, 1986) ; UnitedStates Steel Corp., 86 OSAHRC 8\/B2, 12 BNA OSHC 1692, 1703, 1986-87 CCH OSHD 27,517(No. 79-1998, 1986).Riddles testified he was aware of theoccupational noise standard at the time of the inspection. He knew it stated that hearingconservation was to be implemented without regard to attenuation. He admitted that inspite of that language, he made a conscious decision to implement Trinity’s program, whichmeasures noise exposure by subtracting the attenuation hearing protection affords from theactual noise level. He also admitted he knew OSHA’s position was that it would enforce thestandard without regard to attenuation, but said he did not know this until an earliercase which involved Hackney’s Enid, Oklahoma, facility. After that decision, Hackneyapplied for a variance because it believed it would be infeasible to follow the standard.It also believed it was in compliance since it felt its program exceeded the standard.(Tr. 5-7; 13-21; 28).Sullivan testified she recommended theviolations be classified as nonserious because. of an OSHA directive that provides seriousviolations will not be issued except for noise levels that reach an eight-hour TWA of 92dbA. She found the severity of the violations to be \”zero,\” based on criteriaset out in the OSHA Field Operations Manual. She acknowledged the West Memphis plant had asafety program in effect that included safety meetings, a corporate safety manual and anemployee safety manual. She did not take Riddles’ interpretation of the standard asindifference, or feel that Hackney’s program showed a conscious disregard for employeesafety. (Tr. 106-13; 120; 133-34; 164; Exh. R-5).Although Hackney has been found to haveviolated two requirements of the occupational noise standard, its conduct does notdemonstrate the intentional disregard or plain indifference required for a willfulviolation. On the contrary, the evidence shows it has a safety program which includessafety meetings, a corporate safety manual and an employee safety manual.Respondent asserts there is a difference ofopinion between the parties regarding the interpretation and application of the standard.However, as it points out, this does not establish a willful violation. C. N, Flagg& Co., Inc., dba Northeastern Contracting Co., 75 OSAHRC 32\/C6, 2 BNA OSHC 1539,1541, 1974-75 CCH OSHD 19,251 (No. 1409, 1975).In that case, the Commission stated: [T]here is a difference of opinion between Flagg and Labor as to whether a violation existed on the facts. Certainly an employer is entitled to have a good faith opinion that his conduct conforms to regulatory requirements in a given factual situation. And such conduct should not be construed as constituting a willful violation of the Act merely because Labor holds a contrary opinion on the facts and advises the employer of that opinion.Id. at 1541.The record in this case does not support afinding of willful violations. Moreover, on the basis of Sullivan’s testimony, it does notsupport a finding of serious violations. However, a showing of nonserious violations hasbeen made. Therefore, items 2 and 3 of citation number 1, alleging violations of1910.95(g) (l) and 1910.95(i) (5), respectively, are affirmed as nonserious.I turn now to the assessment of anappropriate penalty. The Secretary proposed a penalty of $1,000 for each of the fouralleged willful violations. However,two of the violations have been vacated, and theremaining two have been affirmed as nonserious. I conclude that a penalty of $500 isappropriate for each nonserious violation, for a total penalty of $1,000. This reflectsRespondent’s size, history, good faith and gravity of the violations.Conclusions of Law1. Respondent, Hackney, Inc., is engaged in abusiness affecting commerce and has employees within the meaning of ? 3(5) of the Act.The Commission has jurisdiction of the parties and of the subject matter of thisproceeding.2. On November 20, 1987, Respondent was innonserious violation of 29 C.F.R. ?? 1910.95(g)(l) and 1910.95(i)(5). Respondent was notin violation of 29 C.F.R. ?? 1910.95(d)(3) and 1910.95 (m) (4).ORDEROn the basis of the foregoing Findings ofFact and Conclusions of Law, it is ORDERED that:1 . Items 1 and 4 of willful citation number1 and the proposed penalties therefore are VACATED.2. Items 2 and 3 of willful citation number 1are AFFIRMED as nonserious and a penalty of $500 for each item is assessed.Louis G. LaVecchiaAdministrative Law Judge DATE: September 13, 1990FOOTNOTES[[*]]Because of certain common issues, thiscase was consolidated with Trinity Industries, Nos. 88-1545 and 88-1547 for purposes ofthe oral argument heard before the Commission on November 13, 1991.\u00a0 However, thecases remain separate for decisional purposes.[[1]] The standard provides:? 1910.95 Occupational noise exposure…..(i)Hearing protectors…..(5) The employer shall ensure proper initialfitting and supervise the correct use of all hearing protectors\u00a0[[2]] The standard provides:? 1910.95 Occupational noise exposure…..(g) Audiometric testing program. (1) The employer shallestablish and maintain an audiometric testing program as provided in this paragraph bymaking audiometric testing available to all employees whose exposures equal or exceed an8-hour time-weighted average of 85 decibels.[[3]] Under section 1910.95(i)(l), employers are onlyrequired to make hearing protectors available to \”employees exposed to an 8-hourtime-weighted average of 85 decibels or greater.\”[[4]] COMMISSIONER MONTOYA: With respect to the noiselevels at Hackney, I want to know whateveidence is there that supports your assertion thatHackney has interfered with the inspection….MR. CONNELL: Well, the compliance officer testified thatshe was prohibited from getting within four feet of the employees.\u00a0 That she was notallowed to put personal monitoring equipment on the employees.Now this was a subject of dispute or it’s a subject ofdispute now. The administrative Law Judge made a credibility determination in creditingher testimony to this effect.CHAIRMAN FOULKE: Well, she didn’t specifically state inher testimony what specific actions Hackney did to interfere with her taking–interferedwith th einspection or taking the measurements.MR. CONNELL: That’s correct. The testimony–when you readher testimony, she sort of speaks in terms of almost like this wasn’t a matter of dispute.That it was clear from the beginning that she wasn’t allowed to put on personal monitoringdevices.CHAIRMAN FOULKE: So why didn’t she just say the plantmanager said no…. As far as we know, the employees may have made a personal decisionthat they didn’t want the monitoring and told her that. And she may have inferred thatthat was something from the company.MR. CONNELL: Well, unfortunately her testimony is not asspecific as that. That’s true.[[5]] In view of our disposition we need not addressHJackney’s unpreventable employee misconduct and de minimis arguments.[[6]] The standard provides:? 1910.95 Occupational noise exposure…..(m) Recordkeeping….(4) Access to records. All records reqruied by thissection shall be provided upon request to employees, former employees, representativesdesignated by the individual employee, and the Assistant Secretary. The provisions of 29C.F.R. 1910.20(a)-(e) and (g)-(i) apply to access to records under this section.[[7]] The standard provides:? 1910.95 Occupational noise exposure…..(m) Recordkeeping….(3) Record Retention. The employer shall retain recordsrequired in this paragraph(m) for at least the following periods.(i) Noise exposure measurements records shall be retainedfor two years.[[8]] The standard provides:? 1910.20 Access to employee exposure and medicalrecords…..(b) Scope and application…..92) This section applies to all employee exposure andmedical records, and analyses thereof, of such employees, whether or not the records aremandated by specific occupational safety and health standards.\u00a0″