” SECRETARY OF LABOR,Complainant, v.KECO INDUSTRIES, INC.,Respondent.INTERNATIONAL ASSOCIATION OFMACHINISTS AND AEROSPACE WORKERS,AFL-CIO, LOCAL LODGE NO. 162,DISTRICT LODGE NO. 34,Authorized EmployeeRepresentative.OSHRC Docket No. 81-0263_DECISION_Before: BUCKLEY, Chairman, and WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), 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 (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).Keco Industries, Inc., produces equipment for military and aerospacesystems at its plants in California and Ohio. During the relevant timeperiod, employees at its Cincinnati, Ohio, plant were manufacturing300-ton, mobile air conditioning units. To complete this project, Kecohad built a garage-like facility where abrasive blasting operationscould be performed.[[1]] Beginning in November 1980, OSHA conducted aninspection of Keco’s Cincinnati plant that focused on its abrasiveblasting operations. The inspection was conducted under a warrantissued by magistrate of the United States District Court for theSouthern District of Ohio. Before us on review are three items of twocitations that were issued as a result of this inspection. [[2]] Commission Administrative Law Judge Joe D. Sparks affirmed all three ofthese items. However, he rejected the Secretary’s classification of twoof the items and reduced the penalties proposed by the Secretaryaccordingly._Citation 2, Item 1: 29 C.F.R. ? 1904.7, Access to Injury and Illness Logs_Item 1 of citation 2 alleged that Keco violated 29 C.F.R. ? 1904.7 andthat the violation was \”willful.\” The regulation provides in part:? 1904.7 _Access to records._(a) Each employer shall provides upon request, records provided for ?1904.2, 1904.4, and 1904.5 [including form OSHA No. 200, the log andsummary of recordable occupational injuries and illnesses], forinspection and copying by any representative of the Secretary of Laborfor the purpose of carrying out the provisions of the act . . . .[(b)](3) Access to the log provided under this section shall pertain toall logs retained under the requirements of ? 1904.6.The referenced regulation provides as follows:? 1904.6 _Retention of records_.Records provided for in ?? 1904.2, 1904.4 and 1904.5 (including formOSHA No. 200 and its predecessor forms OSHA No. 100 and OSHA No. 102)shall be retained in each establishment, for 5 years following the endof the year to which they relate.Judge Sparks found that Keco violated the regulation, held that theviolation was willful, and assessed a $200 penalty.It is undisputed that, during the two-month period covered by OSHA’sinspection, the OSHA compliance officers repeatedly asked Keco’srepresentatives to make available to them the occupational injury andillness logs for the five-year period preceding the inspection. It isalso undisputed that Keco complied with the request only in part. Itturned over its form OSHA No. 200 for the current year (1980), butrefused to let the compliance officers examine and copy its logs for thefour preceding years (1976-1979). Keco did this because OSHA had refusedthe demand made by Keco that OSHA put its request in writing and includein its request the reasons it wished to see the records. Keco claimsthat it was entitled to make that demand because OSHA had previouslyexamined and copied the same records it wished to see again. Keco alsoclaims that the Secretary was required to issue a subpoena for the records.We conclude that Keco violated section 1904.7. Notwithstanding thelanguage of the regulation, an employer may refuse to comply with anoral request by OSHA for access to its injury records; it may insteadassert its right under the fourth Amendment by demanding that OSHApresent it with compulsory legal process–an inspection warrant or anadministrative subpoena–that authorizes OSHA to examine its records. _See Kings Island, Div. of Taft Broadcasting Co_., OSHRC Docket No.82-1016 (March 18, 1987). In this case, however, OSHA made its repeatedrequests for access to Keco’s injury records after it had alreadypresented Keco with an inspection warrant, Keco had moved to quash thewarrant, and the magistrate had denied Keco’s motion. The warrantauthorized OSHA not only to conduct a physical examination of theworksite but also to examine all of Keco’s records that were pertinentto the inspection. Therefore, once OSHA presented Keco with the warrantand orally requested access to its injury records, Keco was required tocomply with section 1904.7 by affording OSHA unconditional access to therequested records. _See_ _Thermal Reduction Corp_., 85 OSAHRC ___, 12BNA OSHC 1264, 1984-85 CCH OSHD ? 27,248 (No. 81-2135, 1985). As JudgeSparks stated:After having lost its motion to quash the warrant, [Keco] was notentitled to prescribe the conditions under which the inspection could beconducted so long as it [the inspection] complied with the Act and theconditions of the warrant. [Keco] was not entitled to impose what itconsidered to be \”a businesslike condition.\” It certainly could askthat its needs be considered but [once OSHA had rejected its demand, it]could not refuse the request for [access to] records which are requiredto be kept and produced for inspection and copying.We also agree with the judge’s conclusion that the violation waswillful. A violation of the Act is willful if \”it was committedvoluntarily with either an intentional disregard for the requirements ofthe Act or plain indifference to employee safety.\” _Simplex_ _TimeRecorder Co_., 85 OSAHRC ___, 12 BNA OSHC 1591, 1595, 1985 CCH OSHD ?27,546, p. 35,571 (No. 82-12, 1985). Here, Keco was well aware of therequirements of section 1904.7. It had previously been cited forviolating this same regulation approximately 17 months before theissuance of the citation that is now before us. Indeed, this earliercitation involved a denial of access to some of the same records–Keco’s1976 and 1977 logs–that are at issue in this case. In addition, therepeated requests that OSHA made for the records during the inspectiongave Keco several opportunities to conform its conduct to theregulation’s requirements. Under these circumstances, Keco’s continuedrefusal to produce the records can only be characterized as anintentional disregard of the known requirements of section 1904.7.Nor is there any indication that Keco acted on a good faith belief thatits conduct conformed to the law. Keco argues before us that theSecretary was required to obtain an administrative subpoena compellingproduction of the records, but it did not demand a subpoena at any timeduring the inspection and it was in fact presented with alternativelegal process–an inspection warrant–authorizing access to tierecords. _See_ _Kings Island_; _Thermal Reduction_. Although Kecoreceived the advice of counsel throughout the inspection, it makes noclaim that it was basing its actions on that advice when it refused toturn over the records unless the compliance officer first submitted asigned, written request detailing the reasons he wished to see therecords. Nor does it argue that this demand should be construed as aninartful request for an administrative subpoena. In fact, the firstreference Keco made to a subpoena during the course of these proceedingswas in its brief on review.Although he found the violation to be willful, Judge Sparks assessed apenalty of $200 instead of the $1000 proposed by the Secretary. Onreview, the Secretary does not take exception to the judge’s penaltyassessment. Accordingly, we affirm the judge’s assessment of a $200penalty._Citation 2, Item 2: 29 C.F.R. ? 1910.94(a)(5)(ii)(a) & (c_),_Abrasive-Blasting Respirators_Item 2 of citation 2, as amended at the hearing, alleged that Kecoviolated section 1910.94(a)(5)(ii)(_a_) & (_c_). It also alleged thatthe violation was willful. The standard provides:? 1910.94 _Ventilation_.(a) _Abrasive blasting_–(5) _Personal protective equipment_.(ii) Abrasive-blasting respirators shall be worn by allabrasive-blasting operators:(_a_) When working inside of blast-cleaning rooms, or(_c_) Where concentrations of toxic dust dispersed by the abrasiveblasting may exceed the limits set in ? 1910.1000 and the nozzle andblast are not physically separated from the operator in anexhaust-ventilated enclosure.Judge Sparks affirmed this citation item as amended, held that theviolation was nonserious rather than willful, and assessed a $250 penalty.AThere is no dispute that, on November 26, 1980, Keco’s abrasive blastingoperator, Richard Kraft, was not wearing an \”abrasive-blastingrespirator.\” The Secretary alleged, and Judge Sparks found, that twosubparagraphs of section 1910.94(a)(5)(ii) required the wearing of sucha respirator:–Subparagraph (_a_), because employee Kraft performed his work inside a\”blast-cleaning room,\” and–Subparagraph (_c_), because during abrasive blasting operations Kraftwas exposed to levels of dust that exceeded the permissible level statedin 29 C.F.R. ? 1910.1000 but was not physically separated from thenozzle and blast by an exhaust-ventilated enclosure.If we were to adopt either of these two findings, we would conclude, asthe judge did, that under the terms of section 1910.94(a)(5)(ii), Kecohad a duty to require Mr. Kraft to wear an abrasive-blastingrespirator. However, Keco disputes both of these findings, and it alsoargues that other standards, sections 1910.94(a)(5)(iii) and1910.94(a)(5)(iii)(_a_), permitted Mr. Kraft to wear a dust-filterrespirator instead of an abrasive-blasting respirator. After settingforth some of the background to this dispute, we will consider each ofthese arguments in turn.The inspection that precipitated the present citation began with anopening conference and a walkaround tour on November 18. However, noabrasive blasting was being performed on that date. Accordingly,compliance officers Steve Messinger and Jim Sweeney stated theirintention to return at a later date for the purpose of observing theabrasive blasting operations and conducting environmental monitoring. The compliance officers asked Keco’s president, George Andrews, \”to letus know when the next average, or usual or normal amount of abrasiveblasting would be performed so that we could return on that day andperform monitoring for noise and dust.\” Mr. Andrews selected November26 as a normal day for abrasive blasting.On November 26, abrasive blasting operator Kraft performed blastingoperations, for four hours and forty minutes (excluding a lunch break). During this time, Mr. Kraft performed abrasive blasting on two largemetal chassis.[[3]] Approximately two-thirds to three-fourths of thiswork time was spent actually blasting the workpieces. The remainder ofthe time was spent on related tasks and work areas.During this 280-minute sampling period, OSHA took several environmental(air contaminant) samples, including both personal samples (devicesattached to operator Kraft) and area samples. The samples takenmeasured the concentration levels of (a) respirable dust inside theoperator’s blasting hood, (b) total dust just outside the hood, and (c)total dust just outside of the abrasive blasting facility. Thesemeasured concentrations were then used to calculate the followingeight-hour time weighted averages (TWA’s):Respirable dust, inside hood 7.74 mg\/M3Total dust, outside hood 414 mg\/M3Total dust, outside facility 24.0 mg\/M3The samples taken inside the operator’s blasting hood showed exposure todust levels exceeding the permissible level for respirable inert ornuisance dust. The samples taken outside the blasting hood showed dustlevels approximately 28 times the permissible level for total inert ornuisance dust.[[4]]During the blasting, operator Kraft wore a blasting hood or helmet thatcovered his head, neck and shoulders. The hood was not air-supplied,but instead had screened openings that blocked most of the dust whileallowing the air in the room to move in and exhaled air to move out. Beneath the hood, Mr. Kraft wore a half-mask respirator with replaceablecartridges, commonly known as a dust-filter respirator. According toKeco’s expert witness, Nicholas Corbo, at the levels of dust measured byOSHA during the inspection, the respirator worn by operator Kraft wouldprovide adequate protection for slightly less than three hours. Kecodid not make available (and apparently did not own) an\”abrasive-blasting respirator\” as defined by section 1910.94(a)(1)(ii),that is, a continuous-flow, air-supplied respirator that protects thehead, face, neck and shoulders.1.We first analyze whether Mr. Kraft was working inside a blast-cleaningroom. The garage-like facility that Keco had built at its plant wasused primarily for abrasive blasting of the chassis of the 300-ton,mobile air conditioning units. These chassis were sufficiently largethat it was necessary to use a forklift to transport them between theproduction area and the blasting facility. Like a garage, the facilitywas open on one side, allowing easy ingress and egress by the forkliftwith its load. However, during abrasive blasting operations, the openside was fully covered by a plastic tarpaulin so that the dust createdduring the operation would be contained within the facility. JudgeSparks found that the garage-like facility used by Keco in its abrasiveblasting operations was a \”blast-cleaning room\” within the meaning ofsection 1910.94(a)(5)(ii)(_a_) and concluded that operator Krafttherefore should have been wearing an abrasive-blasting respirator. Keco argues that the judge erred because its facility was not a\”blast-cleaning room.\”We conclude that Keco’s abrasive blasting facility was a \”blast-cleaningroom\” as that term is defined in section 1910.94(a)(1)(iv), i.e., \”[a]completed enclosure in which blasting operations are performed and wherethe operator works inside of the room to operate the blasting nozzle anddirect the flow of the abrasive material.\” Only one part of thisdefinition raises any problem. The parties disagree as to whetherKeco’s blasting facility is a \”complete enclosure\” within the meaning ofsection 1910.94(a)(1)(iv). Although one side of the enclosure consistedof a plastic tarpaulin rather than a wall, and although one or moresides contained a window, we conclude that Keco’s facility was a\”complete\” enclosure.Enclosing the room was the primary reason for covering its entrance withthe plastic tarpaulin. As stated by Keco in its brief on review, \”Whenblasting operations are under way, the doorway is covered with a largeplastic tarp to lessen the escape of abrasive material.\” TheSecretary’s environmental sampling results confirm that the tarpaulinindeed completed the enclosure of the facility. Inside the facility, theeight-hour, time-weighted-average level of total dust was 414 mg\/M3. Outside the facility, specifically just outside a window, the total dustlevel was only 24 mg\/M3. This evidence establishes that virtually allof the dust generated by the abrasive blasting operations was containedwithin the enclosure, thereby making it a \”complete\” enclosure. Finally, that the room was a \”complete enclosure\” within the meaning ofsection 1910.94(a)(1)(iv) is confirmed by the testimony of complianceofficer Sweeney that the dust levels inside the enclosure were \”thickenough to substantially reduce visibility\” and comparable to \”a snowstorm or blizzard.\”Keco’s argument against classifying its facility as a \”blast-cleaningroom\” is based primarily on the opinion testimony of its expert witness,Nicholas Corbo. We conclude, however, that that testimony is entitledto little weight. In expressing his opinion that Keco’s facility wasnot a \”blast-cleaning room,\” Mr. Corbo reasoned that it did not fallwithin the definition because it was not a \”closed facility.\” Hedescribed the features of a \”closed facility\” as follows:[A] closed facility would be one that would be totally contained. Itwould have a forced-draft air system to some extent to collect theparticles and deposit them somewhere out of the room. The only sourceof outside air would that–from that forced draft that forced draftsituation….In essence, therefore, Mr. Corbo concluded that Keco’s facility was nota \”blast-cleaning room\” because it did not have a forced-draftventilation system. This is not, however, how the standard defines theterm. The definition in section 1910.94(a)(1)(iv) says nothing about aforced-draft ventilation system. The standard’s definition iscontrolling here. Moreover, adopting Mr. Corbo’s definition wouldcreate an absurdity in the standard. Section 1910.94(a)(3)(i) setsforth a requirement that \”[b]last-cleaning enclosures [includingblast-cleaning rooms] shall be exhaust ventilated in such a way that acontinuous inward flow of air will be maintained at all openings in theenclosure during the blasting operation.\”[[5]] Yet, this standard wouldbe rendered inapplicable to the unventilated enclosures it forbids if wewere to define \”blast-cleaning enclosures\” as ventilated enclosures.2.Alternatively, Keco argues that sections 1910.94(a)(5)(iii) and1910.94(a)(5)(iii)(_a_) expressly permitted the use of the dust-filterrespirator worn Mr. Kraft. These standards provide:? 1910.94 _Ventilation_.(a) _Abrasive Blasting_–(5) _Personal protective equipment_.(iii) Particulate filter respirators, commonly referred to asdust-filter respirators, properly fitted, may be used for short,intermittent, or occasional dust exposures such as cleanup, dumping ofdust collectors, or unloading shipments of sand at a receiving point,when it is not feasible to control the dust by enclosure, exhaustventilation, or other means….(_a_) Dust-filter respirators may be used to protect the operator ofoutside abrasive-blasting operations where nonsilica abrasives are usedon materials having low toxicities.Keco’s argument that these were the type of \”short, intermittent, oroccasional dust exposures\” referred to in section 1910.94(a)(5)(iii) isbased on the testimony of its plant manager, Melio Cicchiani, and of itsexpert witness, Mr. Corbo. Based on the plant manager’s testimony, Kecoasserts that its employees were exposed to abrasive blasting for no morethan two and one-half hours a day. It argues, citing the testimony ofits expert witness, that adequate protection is provided at this levelof exposure by a dust-filter respirator. Keco acknowledges the evidencethat employee Kraft worked in the blasting facility for four hours andforty minutes on the day OSHA sampled his exposure. However, it ineffect urges as to disregard this evidence because employee Kraft workedthat day \”at the direction of\” the compliance officers.Judge Sparks rejected Keco’s claims concerning the duration and extentof its abrasive blasting operations. He found that the frequency of theblasting varied. At times, blasting took place on several consecutivedays. Usually, however, it occurred only two or three days a week. Thejudge also found that \”[o]n some days the operator worked his fulleight-hour shift performing abrasive-blasting operations, but it wasmore common for him to work six or seven hours in such work…Keco’s arguments against the judge’s disposition assume that, if itsoperator were engaged in abrasive blasting for only two and one-halfhours a day, or if the Commission thought that its operator was\”adequately\” protected by the dust-filter respirator he wore, theCommission could under section 1910.94(a)(5)(iii) permit Keco todispense with the abrasive-blasting respirator required by section1910.94(a)(5)(ii)(_a_). We are not convinced that this be faithful tosection 1910.94(a)(5)(iii). That section permits the use of dust-filterrespirators instead of abrasive-blasting respirators in only limitedcircumstances–\”for short, intermittent, or occasional dust exposuressuch as [those during] cleanup, dumping of dust collectors, or unloadingshipments of sand at a receiving point….\” The examples given by thestandard of \”short, intermittent, or occasional dust exposures\” indicatethat dust-filter respirators are permitted only during unusual or briefactivities connected with but not directly involving abrasive blasting. Though the examples given–cleanup, emptying of dust collectors andunloading of sand–are not exclusive, they do indicate the kinds ofactivities that the standard was intended to cover. _See_ _Jarecki v.G.D. Searle & Co_., 367 U.S. 303, 307 (1961) (\”a word is known by thecompany it keeps\”). In addition, this record contains no evidence that,during the abrasive blasting operation, it was not \”feasible to controlthe dust by enclosure, exhaust ventilation, or other means…\” withinthe meaning of section 1910.94(a)(5)(iii).In any event, we find no basis to overturn the judge’s finding that theabrasive blasting performed by Keco’s employee resulted in exposuresthat were not \”short, intermittent, or occasional dust exposures….\”Judge Sparks specifically rejected Keco’s claim that its blastingoperations never exceeded two and one-half hours. He concluded thatthis contention was \”directly refuted\” by the Secretary’s evidence thatoperator Kraft engaged in abrasive blasting over a 280-minute samplingperiod on November 26. Citing this evidence, as well as the testimonyof abrasive blasting operator Glenn Upshaw, the judge found as follows:Although [Keco] contends an operator would not spend more than two and ahalf hours abrasive blasting a chassis, I find that on occasion muchmore time was spent in such operations in a day….We conclude that the judge’s findings are supported by the record andthat Keco has provided no grounds for setting them aside. We thereforeadopt the judge’s findings as our own. Specifically, the judge’sfindings are supported by the testimony of blasting operator Upshaw thathe sometimes had engaged in blasting more or less continuously for afull week. Despite Keco’s challenge to that testimony, the judge foundthat it was \”consistent and believable.\”[[6]] We find no basis in thisrecord for overturning the judge’s credibility determination. _See_,_e.g._, _Inland Steel Co_., 86 OSAHRC, 12 BNA OSHC 1968, 1978, 1982,1986 CCH OSHD ? 27,647, pp. 36,005 & 36,009 (No. 79-3286, 1986)(Commission normally accepts judge’s credibility evaluations).Contrary to Keco’s arguments on review, Mr. Upshaw’s testimony was not\”rebutted by the clear testimony\” of plant manager Cicchiani. The plantmanager testified only that it was _possible_ to complete the abrasiveblasting of a single chassis in two or two and one-half hours (\”It couldbe done\”). He gave no testimony that abrasive blasting was in factlimited to two and one-half hours per day.[[7]] On the contrary, hetestified that \”sometimes they are out there three or four hours, butthey aren’t sandblasting the whole time.\” Moreover, Mr. Cicchianicorroborated Mr. Upshaw’s testimony that the blasting operatorssometimes blasted two chassis in a single day and that they blastedsmaller items, e.g., connectors and rings, in addition to the chassis. Using Mr.Cicchiani’s own calculations, it appears that an operator couldnot blast two chassis in less than four to five hours.We also agree with the judge’s implicit finding that Mr. Upshaw’stestimony is corroborated by the evidence concerning the blastingoperations on November 26, the day operator Kraft’s exposure wassampled. As noted, Mr. Kraft performed work on two chassis on that dateover a 280-minute period. Contrary to Keco’s suggestions, there is noindication in this record that this sampling was in any way staged orlengthened by the OSHA compliance officers. In fact, it was Keco’spresident who selected November 26 as a typical day for blastingoperations. In any event, Keco made no attempt to rebut complianceofficer Sweaney’s testimony that he and compliance officer Messingerasked operator Kraft to perform his work in a normal manner.In sum, we disagree with Keco’s argument that these were the type of\”short, intermittent, or occasional dust exposures\” referred to insection 1910.94(a)(5)(iii).[[8]]We also reject Keco’s claim that this was an \”outside abrasive-blastingoperation\” within the meaning of section 1910.94(a)(5)(iii)(_a_). Thisprovision must be read in conjunction with the general rule thatdust-filter respirators are permitted only for \”short, intermittent oroccasional dust exposures.\” The obvious intent of section1910.94(a)(5)(iii), when read in the context of the standard as a whole,is to define exceptional circumstances when an employee may wear adust-filter respirator rather than an abrasive-blasting respirator. When viewed in this context, the \”outside\” operations exception clearlyrefers to outdoor operations where the absence of an enclosure allowsfor dispersion of the dust created during abrasive blasting. Thisprovision does not apply to operations inside the enclosed blastingfacility at Keco’s workplace, where a concentration of dust 28 times thepermissible limit for total inert or nuisance dust accumulated duringthe sampling period.3.We therefore agree with Judge Sparks that Keco was required by section1910.94(a)(5)(ii)(_a_) to provide operator Kraft with anabrasive-blasting respirator. We will therefore affirm item 2 ofcitation 2 on that ground. Ordinarily, it would be unnecessary to reachthe question whether Keco was also obligated by section1910.94(a)(5)(ii)(_c_) to provide the same abrasive-blastingrespirator. However, the Secretary’s argument that Keco’s violation waswillful is based in part on his argument that Keco violated bothsubsections (_a_) and (_c_) of section 1910.94(a)(5)(ii). We willtherefore review the judge’s finding that Keco violated subsection (c).Abrasive-blasting respirators are required under section1910.94(a)(5)(ii)(_c_) if \”concentrations of toxic dust dispersed by theabrasive blasting\” may exceed any of the exposure limits listed insection 1910.1000 and \”the nozzle and blast are not physically separatedfrom operator in an exhaust-ventilated enclosure.\” There is no disputeon this latter criterion; employee Kraft worked in the same room as theblasting, and he was not physically separated from it by anexhaust-ventilated enclosure. Judge Sparks found that the firstcriterion was also satisfied because samples of dust taken on and aboutemployee Kraft showed that he was exposed to dust levels higher thanthose permitted by section 1910.1000. More particularly, the judgefound the dust levels dispersed by the abrasive blasting exceeded the 5mg\/M3 limit for respirable \”inert or nuisance dust,\” a limit establishedby Table Z-3 of section 1910.1000. On review, Keco disputes this finding.We find no error in the judge’s findings on the level and duration ofoperator exposure to abrasive blasting dust. We nevertheless cannotconclude that Keco violated section 1910.94(a)(5)(ii)(_c_), for theSecretary failed to prove that the dust was a \”toxic dust\” within themeaning of the standard.The Secretary did establish, at least generally, the composition of theabrasive blasting dust. Compliance officer Sweeney described thematerial used in Keco’s blasting operations as \”Black Beauty abrasiveblasting grit, a slag material.\” An OSHA lab analysis of some of thedust samples revealed \”large quantities\” of iron and calcium,\”substantial quantities\” of aluminum and \”some\” lead. The complianceofficer also listed six other metals that the lab did not test for butthat are usually found in the type of abrasive grit used by Keco.However, the record contains no evidence that the dust was\”toxic\”.[[9]] No witness testified, and no documentary evidence states,that the dust is \”toxic.\” Nor is there any evidence from which we couldreach that conclusion. The record is simply silent on the question ofwhat effect, if any, exposure to the dust would have on a person whobreathed the dust. We also note that the Secretary’s allegations inthis case may be internally inconsistent. Specifically, we questionwhether an \”inert or nuisance dust\” within the meaning of Table Z-3 canever be classified as a \”toxic\” dust. _See_ _Bunge Corp_., 86 OSAHRC,12 BNA OSHC 1785, 1986 CCH OSHD ? 27,565 (No. 77-1622, 1986) (meaning ofterm \”inert or nuisance dust\”). Since section 1910.94(a)(5)(ii)(_c_)applies only to abrasive blasting operations that disperse \”toxic dust,\”we cannot find that Keco violated that section.BAs we stated previously, a violation of the Act is willful if it wascommitted voluntarily with either an intentional disregard for therequirements of the Act or plain indifference to employee safety. Here,Judge Sparks vacated the Secretary’s allegation that Keco’s violation ofsection 1910.94(a)(5)(ii) was willful. On review, the Secretary arguesthat the judge erred. The Secretary relies heavily on a letter writtenin August 1979, slightly more than a year before the violation now at issue.The citations now on review were issued as a result of an inspectionthat began in November 1980 and ended in January 1981. Before this,however, OSHA had also inspected Keco’s workplace in August 1979. Atthat time, no abrasive blasting was being performed at the workplace. Following the inspection, on August 28, 1979, OSHA’s Acting AreaDirector Frank Memmott wrote a letter to Keco’s President GeorgeAndrews, which stated in part:During an inspection of Keco Industries, Incorporated conducted onAugust 13-15, 1979, the following conditions were observed: Abrasiveblasting is conducted in an unventilated hut outside of building A by anemployee who wears a half-face dust respirator, a face shield, canvassgloves and a heavy canvass coat. Since the unventilated enclosure wouldtend to contain dust generated during the operation, the operator shouldas a minimum be provided with an abrasive blasting operation respiratorwhen working in this type of enclosure….The abrasive blastingoperation cannot be considered as an outside operation because the areathe operator works in is a confined area. There are specificrequirements for the quality of the breathing air supplied to abrasiveblasting respirators set forth in ANSI Z9.2-1960.The abrasive blasting operation was last performed in mid July of 1979. It was not observed at the time of the inspection and exposureconditions could not be adequately reconstructed at the time of theinspection. The abrasive blasting standard 1910.94(a) should becarefully reviewed for compliance with the standard prior to the nextblasting operation. We may contact you in the future to observe theabrasive blasting operation. Please indicate to us in a letter thecorrective actions planned in the abrasive blasting room.The Secretary argues that this letter gave Keco notice that the standardapplied to its blasting operations. In addition, the Secretarycontinues, the letter specifically informed Keco that it did not fallwithin the standard’s \”outside…operations\” exception and thereforethat a dust-filter respirator would not be adequate protection for theabrasive blasting operator. The Secretary further notes that it isundisputed that the blasting operations described in the August 1979letter were the same operations later cited in the citation that is nowbefore us.In response, Keco contends that its violation of the standard was notwillful because it did not ignore the requirements of the standard. Instead, it disagreed in good faith the Secretary’s interpretation ofthe standard. Keco argues that it believed that its operations weregoverned by the provisions that allow use of a dust-filter rather thanthe provisions that require use of an abrasive-blasting respirator. Accordingly, Keco concludes, the violation was not willful because itcomplied with those provisions of the abrasive blasting standard that itbelieved to be applicable to its operations.A willful charge is not justified if an employer has made a good faitheffort to comply with a standard or to eliminate a hazard even thoughthe employer’s efforts are not entirely effective or complete. _E.g_.,_Asbestos Textile Co_., 84 OSAHRC, 12 BNA OSHC 1062, 1063, 1984-85 CCHOSHD ? 27,101, p. 34,948 (No. 79-3831, 1984). In addition, a goodfaith, reasonable belief by an employer that its conduct conformed tothe law negates a finding of willfulness. _E.g._, _RSR Corp._, 83OSAHRC 6\/A2, 11 BNA OSHC 1163, 1172, 1983-84 CCH OSHD ? 26,429, pp.35,550-551 (No. 79-3813, 1983), _aff’d_, 764 F.2d 355 (5th Cir. 1985).We agree with the judge that Keco’s violation of section1910.94(a)(5)(ii)(a) was not willful. Keco did not ignore therequirements of the abrasive blasting standard. Nor was it indifferentto the safety and health of its abrasive blasting operators. Itsupplied its the safety and health of its abrasive blasting operators. It supplied its abrasive blasting operators with both a blasting hood orhelmet and a dust-filter respirator, which provided considerableprotection against the dust created during the blasting operations.[[10]]In doing so, Keco complied with the provisions of the abrasive blastingstandard that it believed to be applicable to its blasting operations.Although we have concluded that this belief was erroneous, we cannotconclude that it was unreasonable and held in bad faith. Kecointerpreted the critical term \”complete enclosure\” as being inapplicableto its blasting facility because its facility had an open side coveredonly by a plastic tarpaulin and it also had one or more windows in threewalls. Keco also disagreed with the view expressed in OSHA’s letterthat its operation was not an \”outside\” blasting operation because itwas in \”a confined area.\” The letter from OSHA’s acting area directorto Keco’s president does not make clear which provision of the abrasiveblasting standard the OSHA official was relying upon as the basis of hisopinion or even if the official was basing his opinion on the standard’sterms. Significantly, the letter does not use the term \”blast-cleaningroom\” and it does not discuss whether Keco’s facility fell within thedefinition of that term. In view of this incomplete and ambiguousexplanation of the Secretary’s position, we cannot conclude that Kecoacted unreasonably in disagreeing with it. Moreover, although we havein effect adopted OSHA’s interpretation of the standard and rejectedKeco’s, the standard is not so clearly written as to render Keco’sposition indefensible or implausible. In fact, Keco’s interpretationwas supported by the testimony of its expert witness, a professionalconsulting engineer.Accordingly, we agree with Judge Sparks that Keco’s violation of section1910.94(a)(5)(ii)(_a_) was not willful. We also agree with the judgethat the violation cannot be classified as \”serious\” because there wasno allegation by the Secretary that the violation was serious andbecause the issue was not tried by the parties. We therefore affirm thejudge’s order classifying the violation as nonserious and assessing a$250 penalty._Citation 1, Item 2: Section 1910.178(m)(12)(i)_,_Lack of Elevating Safety Platform_Item 2 of citation 1 alleged a serious violation of section1910.178(m)(12)(i), which provides:? 1910.178 _Powered industrial trucks_.(m) _Truck operations_.(12) Whenever a truck is equipped with vertical only, or vertical andhorizontal controls elevatable with the lifting carriage or forks forlifting personnel, the following additional precautions shall be takenfor the protection of personnel being elevated.(i) Use of a safety platform firmly secured to the lifting carriageand\/or forks.Judge Sparks affirmed this citation item, held that the violation wasnonserious rather than serious, and assessed a $100 penalty.It is undisputed that the two OSHA compliance officers observed aviolation of this standard on the second day of the inspection, that is,the day they returned to conduct environmental and noise sampling of theabrasive blasting operations. The question here is whether theSecretary proved that Keco had actual or constructive knowledge of theviolative conditions. _See_, _e.g_., _A. Amorello &_ _Sons Inc_., 86OSAHRC, 12 BNA OSHC 1641, 1986 CCH OSHD ? 27,483 (No. 79-4703, 1986). There is no evidence that any of Keco’s supervisors had actual knowledgeof the particular incident that resulted in the citation. We thereforeinquire whether Keco had constructive knowledge. Constructive knowledgeexists where the employer could have known of the violative conditionsif it had exercised reasonable diligence. _Id_.At approximately 1:00 p.m. on the second inspection day, the complianceofficers were returning to the abrasive blasting facility to resumenoise and dust sampling, following a lunch break. Keco’s employees wereremoving the chassis that had been blasted in the morning and replacingit with a second chassis that would be blasted during the afternoon. This required that the plastic tarpaulin covering the entrance belifted onto the roof.As the compliance officers approached the abrasive blasting facility,they saw blasting operator Kraft standing on the forks of a forkliftabout seven feet in the air. He was lifting the plastic tarpaulin upfrom the entrance of the facility and placing it onto the roof. According to compliance officer Sweeney, the two compliance officerswere from 30 to 35 feet away from the facility when they first observedoperator Kraft. The employee was already seven feet in the air at thattime.Judge Sparks found that \”[a] common way to attain the height necessaryto handle the plastic [tarpaulin] was for an employee to stand on theforks….\” He further found that Keco’s supervisors, specifically itswelding department foremen, not only were aware of this practice butalso participated in it.[[11]] In addition he found that, while Kecohad a safety platform for use in lifting personnel, \”[t]he existence ofthe platform was not known by employees and it was not used…untilafter the date of the inspection.\” In entering these findings, thejudge relied principally upon the testimony of blasting operator Upshaw,which he expressly found to be \”consistent and believable.\” Mr. Upshawtestified to the effect that the most common way for the abrasiveblasting operators to fold the plastic tarpaulin up on top of the roofwas for them to be elevated to the roof level on the forks of theforklift. He explained that, from this position, they could easilyperform the task that, while the task could be, and sometimes was,performed while standing on sawhorses or ladders, the forklift methodwas the easiest.[[12]] On the basis of findings, including statedabove, Judge Sparks concluded that Keco had violated section1910.178(m)(12)(i).Keco argues that the judge’s finding are contradicted by the testimonyof plant manager Cicchiani, who stated that Keco had had a safetyplatform \”for a long time,\” that it was used for lifting both workersand material, that \”the personnel in the plant that operate theforklift\” had been instructed not to lift other employees without usingthe safety platform, and that \”in November 1979 (sic)\” it would not havebeen \”permissible\” for forklift operator to lift blasting operator Krafton the forks of the forklift operator to lift blasting operator Kraft onthe forks of the forklift without using a platform. According to Keco,this testimony establishes that the incident observed by the complianceofficers was \”an isolated incident of employee misconduct.\”We conclude that Keco had constructive knowledge of the violated section1910.178(m)(12)(i). The judge expressly found blasting operator Upshawto be a credible witness, and we accept his evaluation of Mr. Upshaw’scredibility. _See_ _Inland Steel Co_., 12 BNA OSHC at 1978, 1986 CCHOSHD at p. 36,005. Mr. Upshaw’s testimony establishes that it was acommon practice for abrasive blasting operators to be lifted on theforks of the forklift, without using the safety platform, and that atleast some of Keco’s supervisors knew of this practice. Mr.Cicchiani’s testimony that Keco had a safety platform and that forkliftoperators were instructed to use it does not negate our finding ofconstructive knowledge because the record establishes that theseinstructions were routinely disregarded. _See_ _Ted Wilkerson, Inc_.,81 OSAHRC 70\/D8, 9 BNA OSHC 2012, 2018-19, 1981 CCH OSHD ? 25,551 at p.31,858 (No. 13390, 1981).We will therefore affirm the judge’s holding that Keco violated section1910.178(m)(12)(i). We also affirm the classification of the violationas nonserious and the assessment of a $100 penalty.Accordingly, the Commission modifies item 2 of citations by vacating theallegation that Keco violated section 1910.94(a)(5)(ii)(_c_). With thisexception, the judge’s order affirming items 1 and 2 of citation 2 anditem 2 of citation 1, and assessing penalties of $200, $250, and $100,respectively, is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: March 27, 1987————————————————————————SECRETARY OF LABOR,Complainant,v.KECO INDUSTRIES, INC.,Respondent,and INTERNATIONAL ASSOCIATION OFMACHINES AND AEROSPACEWORKERS, AFL-CIO, LOCALLODGE NO. 162, DISTRICTLODGE NO. 34Authorized EmployeeRepresentative.OSHRC Docket No. 81-0263APPEARANCES:Gary A. Boncella, Esquire, Office of the Solicitor, U.S.Department of Labor, Cleveland, Ohio, for the complainant.Robert G. Adair, General Counsel, Keco Industries, Inc.,Cincinnati, Ohio, on behalf of respondent._DECISION AND ORDER_SPARKS, Judge: Following an inspection conducted pursuant to acomplaint, three citations were issued on January 14, 1981, chargingKeco Industries with \”serious,\” \”willful\” and \”other\” violations of theOccupational Safety and Health Act of 1970 (the \”Act\”).Keco is engaged in producing equipment for military and aerospacesystems at plants in California and Cincinnati, Ohio. This caseinvolves abrasive-blasting operations primarily on air conditioningunits produced for the U.S. Navy at the Cincinnati plant. Abrasiveblasting is similar to sandblasting but used metallic grit rather than sand.Complainant charges that employees were subjected to excessive levels ofnoise and respirable dust, a proper respirator was not worn, aprotective blasting hood was not maintained in proper repair andemployees were permitted to use an industrial truck as a raisedplatform. In addition, respondent is charged with failing to make andkeep certain required records, failing to produce other records whenrequested and other violations.I_ISSUES_Amendments granted at the hearing leave the following issues fordecision (Tr. 26-33):1. Whether the evidence establishes serious violations of 29 C.F.R.?1910.95(b)(3) caused by excessive noise levels.2. Whether respondent’s employees used an industrial truck to liftpersonnel without a firmly secured safety platform under conditionsconstituting a serious violation of 29 C.F.R. ? 1910.178(m)(12)(i).3. Whether there were willful violations of 29 C.F.R. ? 1904.7 causedby a failure to make available the log and summary of occupationalinjuries and illnesses, and of 29 C.F.R. ? 1910.94(a)(5)(ii)(a) and (c)because employees were not wearing abrasive blasting respirators andwere exposed to airborne respirable dust in excess of permissible limits.4. Whether the evidence establishes an \”other than serious\” violationof 29 C.F.R. ? 1904.2(a) in that the record of occupational injuries andillnesses failed to contain two recordable injuries and other violations.5. Whether respondent has established any affirmative defenses.6. The appropriate penalties to be assessed if violations are found.7. The appropriate abatements dates if violations are found.After consideration of the evidence in the record, the following factshave been established:II_FINDINGS OF FACT_1. Respondent employed approximately 220 to 250 employees at the timeof the inspection (Tr. 200, 454).2. The abrasive-blasting task which was performed most often was of achassis of a 300-ton air conditioner, but similar work was done on otheritems (Tr. 40, 437, 443).3. Abrasive blasting was not performed every day and was oftenperformed less than a full day (Tr. 40, 437).4. The frequency of sandblasting varied, at times it was performedseveral days consecutively but usually two or three days a week (Ex.C-8; Tr. 55-58, 439).5. On some days the operator worked his full eight-hour shiftperforming abrasive-blasting operations, but it was more common for himto work six or seven hours in such work (Ex. C-8; Tr. 58, 102).6. Although respondent contends an operator would not spend more thantwo and half hours abrasive blasting a chassis, I find that on occasionmuch more time was spent in such operations in a day (Ex. C-1, C-2; Tr.58, 102, 439, 454).7. At the time of the OSHA walkaround inspection, there was availableto the abrasive-blast operators a hood with plastic shield. The helmethad a rip in it which reduced the level of protection. At the time thesampling took place on November 26, 1980, it had been replaced by a newhood (Ex. C-13, C-14; Tr. 39, 41-42, 58-60, 158-165, 284, 457).8. When first employed in blasting operations at Keco in May 1980,Glenn Upshaw was not furnished a respirator. He began using paper masksof the type used by painters with the helmet and later furnished his ownrespirator. After the walkaround inspection by OSHA, the companysupplied a respirator (Tr. 37-43, 64-65, 445-447).9. The abrasive-blasting operator complained about the condition of hisface shield and temporary repairs were made, but his supervisors werenot responsive to his request for repair or replacement of protectiveequipment (Tr. 60, 61-63).10. On the date noise and dust samples were taken, the operator waswearing a hood which did not supply its own air, designated as ModelBH-5 manufactured by the Empire Blasting Company. It was not the typerequired for abrasive-blasting operations described in regulations at 29C.F.R. ? 1910.94 (Tr. 147-148, 284, 303, 381, 385-386, 406).11. Abrasive-blasting respirators are commonly available for sale (Ex.C-10, C-11, C-12; Tr. 149-152).12. The abrasive blasting was done in a building similar to a garage orcarport with three sides and a roof. Two of the sides had windows. Thefront of the building was open but could be enclosed by unrolling aplastic sheet which was attached over the opening. The opening wasnecessary to permit bringing in the items to be sandblasted (Ex. R-2,R-3; Tr. 43-44, 96, 233-235, 250-251, 303).13. The plastic sheeting used to cover the entrance to the sandblastingbuilding was attached to the building above the opening with the bottomend pulled up over the roof of the building. To lower or raise theplastic, it was necessary for two men to use ladders or some other meansto reach the plastic and lower it over the enclosure, or lift up theplastic before removing the part which had been blasted. A common wayto attain the height necessary to handle the plastic was for an employeeto stand on the forks of an industrial truck and be lifted up to theheight necessary to reach the tarp (Ex. R-2, R-3; Tr. 44-45, 67-69,73-75, 169-172, 233-235, 250-253, 256-260).14. A safety platform was available on the yard for use with theindustrial truck. Employees could stand in the platform which waspicked up by the industrial truck and be lifted to the desired height. Instructions for use of the safety platform were posted on theforklift. The existence of the platform was not known by employees andit was not used, however, until after the date of the inspection (Tr.70-71, 80, 434-436).15. The foreman of the welding department usually participated in usingthe forklift to lift workers to the height necessary to move the plasticsheeting (Tr. 44-45).16. James J. Sweeney, an industrial hygienist for the OccupationalSafety and Health Administration for four years, conducted the samplingsfor noise and dust in the case. Mr. Sweeney obtained a bachelor’sdegree in chemistry in 1975 and received additional training after beingemployed by OSHA. He has passed the examination for industrialhygienists given by the American Board of Industrial Hygiene Corps (Tr.86-90).17. At an opening conference with officials of the company, Mr. Sweeneyinformed them that the complaint concerned the abrasive-blasting areaand requested that he be informed when usual or normal blastingactivities would be performed so monitoring for noise and dust could bedone on that day. The company president specified a date and themonitoring was done on November 26, 1980, on employee Richard Kraft. Atthe time the sampling was made, Kraft was wearing a non-air-suppliedhelmet and hood and cartridge-type respirator. He was also wearingearmuffs over a knit cap (Tr. 96-97, 100-101).18. Three dust samples were obtained. A respirable dust sample showedthe concentration level of respirable dust inside the blasting hood wornby the employee. The total personal dust sample reflected theconcentration level of total dust just outside the blasting hood. Thearea total dust sample recorded the concentration level of dust justoutside the blasting enclosure (Tr. 98, 100).19. The eight-hour time weighted average for respirable dust inside thehood was 7.74 mg\/M3 (Ex. C-1, C-4, C-5; Tr. 120-121, 135-136, 287-289,372). The eight-hour item weighted average for total dust from thesample taken just outside the hood was 414 mg\/M3 (Ex. C-2, C-4, C-6; Tr.121, 122).20. Limiting employee exposure to dust to two and a half hours per daywould probably be sufficient to comply with the permissible exposurelimits (Tr. 295, 421-424).21. The eight-hour time weighted average for area dust taken by thesample outside the sandblasting building was 24 mg\/M3 (Ex. C-3, C-4,C-7; Tr. 121).22. The abrasive-blasting operator was exposed to dust levels in excessof those permitted by OSHA regulations (Ex. C-4; Tr. 401-402).23. Noise levels were monitored by two instruments, a DuPontaudiodecimeter which gives a readout expressed in terms of a percentageof the permissible limit and a sound level meter which measures thenoise level which exists at any point in space and any moment in time(Tr. 136, 299-301).24. The DuPont audiodecimeter was placed on the employee performingabrasive blasting with the microphone attached to clothing near hisear. The monitoring began shortly after 7:30 a.m. and continued untillunch. It was resumed after lunch and remained until 1:11 p.m. whensandblasting was completed for the day. Fight readings were made of thearea near the employee at various times during the day (Ex. C-8; C-9;Tr. 138-139, 145-146).25. The readings of the decimeter show noise levels 154% of permissiblelevel (Ex. C-8, C-9; Tr. 145-146, 351).26. Respondent’s employee, Richard Kraft, was exposed to noise levelsin excess of those permitted by the OSHA regulations (Ex. C-8, C-9; Tr.145-146, 353, 362, 394-396). Readings from the sound level meter shownoise levels ranging between 111 dba and 114 dba near the operator’s earto between 87 dba and 91 dba at 12 feet from the window (Ex. C-8, C-9;Tr. 146).27. Noise levels could be administratively reduced by limiting time anyemployee is engaged in abrasive-blasting operations. Rotation ofoperators would also reduce the exposure to respirable dust (Tr.153-155, 197-198, 350-353).28. The average noise exposure level was 97.3 dba. An employee may beexposed to that level for 2.9 hours so long as he is exposed to noiselevels below 90 dba during the remaining hours of his work day (Tr.155-157, 262-264).29. The noise level readings did not record the level of noise heard bythe operator as they do not give effect to earmuffs worn by the operator(Tr. 370).30. A person wearing a properly fitted earmuff which reduced the noiselevel by 21% or 26% would not hear noises in excess of 90 dba (Tr. 274,366-370, 378, 380).31. The operator was wearing a knitted cap over his head and betweenhis ears and the earmuffs which could prevent a tight seal around theears (Tr. 264, 275, 399-401).32. After specific and repeated requests, respondent refused to permit,OSHA compliance officers to inspect required forms OSHA 200, which arerecords of injuries and illness, for the years 1976 through 1980. It isthe policy of OSHA to review such records for the five years precedingthe inspection (Tr. 172-175, 188-196).33. Respondent refused to produce the records on the grounds they werein storage and it would be expensive to retrieve them. The companyoffered to consider the request if it was put in writing and reasonsgiven for the request (Tr. 203-204, 281).34. Keco was issued a citation on August 28, 1979, for an \”other thanserious\” violation of 29 C.F.R. ? 1904.7 for failing to make forms OSHA100, 101 and 102 available for inspection or copying at the time of theinspection. There was no notice of contest filed as to that item and itbecame a final order of the Commission (Ex. C-15, C-16; Tr. 175-178, 196).35. In support of their continuing efforts to obtain copies of recordsof injuries and illnesses, respondent was furnished copies ofpublications and regulations setting forth the requirements for keepingand producing records (Ex. C-17, C-18; Tr. 182-183, 196-197).36. Industrial Hygienist Messinger, who participated in the instantinspection, had been provided with the records for 1978 and possibly1979 during an inspection in 1979 (Tr. 211-215, 316-317, 319, 327-328).37. The focus of the inspection in the current inspection, _i.e_., theabrasive blasting area, was a different emphasis from previousinspections (Tr. 243, 246).38. Keco maintains a record of \”recordable\” injuries and also maintainsa book entitled \”Nonrecordable Injuries\” in which injuries are loggedwhich are not considered to be recordable injuries (Tr. 309).39. The determination whether an injury is logged in the book ofnon-recordable injuries or is placed in the recorded injuries is basedon several factors including the information required by form C-3 whichis a medical report to the Ohio Industrial Commission (Tr. 310-313,320-325).40. The determination of whether an injury was recordable was basedupon an initial evaluation of the injury and was not changed after thefull medical report was received, which was sometimes several weeksafter the event (Tr. 313-315, 325, 329-330).41. Injuries to R. Bedinghous, Dominic Sweeney, Jeff Broz and AndrewBrock were considered by OSHA to have been logged incorrectly asnon-recordable injuries (Tr. 209, 313, 315, 325).42. Mr. N. J. Corbo, an experienced mechanical engineer, testified asan expert witness on behalf of respondent (Tr. 333-336, 339-347).43. It was Mr. Corbo’s opinion that respondent’s sandblasting facilitywas not a \”closed blasting cleaning room\” within the meaning of the\”General Industry Standards\” published by OSHA. He based his opinionon the grounds that a closed facility would be one totally containedwith a forced-draft system to collect and deposit dust outside the room(Tr. 336-337, 383-385, 409-413, 417).44. The noise level readings contained in exhibits C-8 and C-9 wereconfirmed by tests Mr. Corbo made shortly before the hearing using ageneral radio octave band analyzer (Ex. R-5; Tr. 354-358).45. Mr. Corbo was of the opinion that the respirator used at Kecoprovided adequate protection from respirable dust for a limited periodof time up to 2 hours and 57.3 minutes (Tr. 374-375, 414-415).46. The record contains no evidence to support respondent’s allegationsof harassment or improper conduct by the complainant or his agents inthis case (Tr. 463-474).47. Respondent’s facility was a blast-cleaning room within the meaningof 29 C.F.R. ? 1910.94(a)(1)(iv).48. At the time of the inspection, respondent did not have writtenstandard operating procedures in effect governing the selection and useof respirators (Tr. 166).49. Although the respirator was seen lying in the blasting room,respondent had a proper storage locker inside the boiler room.50. Proper training, fitting, and testing of the respirator were notaccomplished.51. Earmuffs worn by the operator effectively reduced the noise levelheard by the operator to below 90 dba (Tr. 367-368).III_DISCUSSION_A. Serious Citation 1, Item 1(a), alleges a violation of 29 C.F.R. ?1910.95(b)(1) on the grounds that the noise levels exceeded those shownin Table G-16 of subpart G and feasible administrative and engineeringcontrols were not utilized to reduce the sound levels. Respondentcontends that employees did not spend more than two and a half hours ofany shift in sandblasting operations and, therefore, the sound levelsrecorded by the compliance officers did not show a violation of theregulations. Respondent further contends the earmuffs worn by employeesreduced the noise actually heard by employees to a level far below themaximum permitted by the regulations (Resp. brief pp. 2-3).The evidence establishes that the abrasive-blasting operator was exposedto noise far in excess of the maximum. On the day the sampling wasmade, the noise readings were taken from 7:43 a.m. to 10:50 a.m. beforelunch and from 11:48 a.m. to 1:11 p.m. after lunch. During the 280minutes (4 hours, 40 minutes) the sample was taken, the noise levelabove 90 dba was 154% of that allowed for a full eight-hour day (Ex.C-8, C-9; Tr. 145-416). Respondent’s contention that operators did notengage in abrasive blasting for longer than two and a half hours on anyday is directly refuted by the documentation of the noise sample and thetestimony of Compliance Officer Sweeney. In any event, it is clear thatnoise conditions were of a level to exceed the maximum allowed for afull eight-hour shift. Protective earmuffs worn by operators wouldreduce the level of noise reaching their ears up to 25 dba (Tr.367-368). That the earmuffs may have reduced the sound level reachingthe employees’ ears below 90 dba does not, however, accomplishcompliance with the regulations because the Review Commission has ruledthat personal protective equipment (earmuffs) can be used to controlnoise only if it cannot be done by means of feasible engineering andadministrative controls. _Turner Co_., 76 OSHARC 108\/A2, 5 BNA OSHC1790, 1976-77 CCH OSHD ? 21,023 (No. 3635, 1976). [Reversed andremanded on issue of economic feasibility, 1977-78 CCH OSHD ? 22,105.]In _Turner_ the Commission stated as follows (1976-1977 CCH OSHD at p.25,274):The standard itself is clear and unambiguous. It requires thatengineering or administrative controls first be used to reduce noiselevels to the extent that controls are feasible under the circumstances. Personal protective equipment must then be used to supplement theengineering and administrative controls if the use of such controls donot reduce noise levels to the prescribed limits.The excessive noise levels could be abated by means of administrativecontrols. The average noise level of 97.3 dba is permissible for 2.9hours. If respondent had, in fact, restricted its abrasive-blastingoperations to not more than two and a half hours in any day, the soundlevel would not have been exceeded (Tr. 438–440, Resp. brief p. 2). The testimony of Manager Cicchiani indicated such scheduling to bepracticable.The evidence does not show conditions which would likely result in deathor serious bodily injury. Under such circumstances, modification of thecitation to \”other than serious\” is appropriate.B. Serious Citation 1, Item 2, charges that an industrial truck wasused to lift personnel without a safety platform in violation of 29C.F.R. ? 1910.178(m)(12)(i).The compliance officers observed an employee standing on the forks of anindustrial truck and being raised up to a height of about seven feetwhich permitted him to remove the plastic tarp which covered one end ofthe abrasive-blasting building (Tr. 168-169). An employee confirmed thatthe tarp was often moved by an employee standing on the truck (Tr.68-69). The testimony is consistent and believable.Respondent contends the worker who testified was a dissident and hostileemployee, but no reason is given to disbelieve his testimony (Resp.brief p. 4). Respondent claims there was a safety platform on the yard,but the evidence indicates that its existence and use was not known toemployees until after the inspection (Tr. 71, 80).A fall of up to seven feet to the hardened surface from the forks of anindustrial truck could result in serious injury, but a fall from thatheight is unlikely to have so severe a result. An \”other than serious\”violation is established.C. Willful Citation 2, Item 1, alleges that OSHA form 200 andpredecessor forms 100 and 102 for the years 1976 through 1979 were notmade available for inspection and copying.The regulation states that, \”Each employer shall provide, upon request,records … for inspection and copying by any representative or theSecretary of Labor for the purpose of carrying out the provisions ofthe Act….\” 29 C.F.R. ? 1904.7.Section 1904.2 requires that a log and summary of all recordableoccupational injuries and illnesses be kept. The compliance officersmade several clear requests for the records, but the requests wererebuffed. Respondent refused to produce the records without a writtenrequest and an explanation as to why they were needed. Records for 1976and into 1979 had been examined during a previous inspection and were instorage (Tr. 280-281). Respondent contends it did not refuse to providethe records but \”…simply prescribed a reasonable and businesslikecondition\” (Resp. brief pp. 5-6). Complainant asserts a review of therecords was necessary to see if there had been injuries or illnessesassociated with the abrasive-blasting operations or if amendments hadbeen made on the records (Tr. 212, 242-244, 246).As it was entitled to do, respondent had required that the Secretaryobtain a warrant before conducting the inspection (Tr. 94-95). Afterhaving lost its motion to quash the warrant, respondent was not entitledto prescribe the conditions under which the inspection could beconducted so long as it complied with the Act and the conditions of thewarrant. Respondent was not entitled to impose what it considered to be\”a businesslike condition.\” It certainly could ask that its needs beconsidered but could not refuse the request for records which arerequired to be kept and produced for inspection and copying.Complainant alleges the refusal constituted a willful violation whichhas been defined as conduct committed \”with either an intentionaldisregard of or plain indifference to the Act’s requirements.\” _MelJarvis Construction Co_., 81 OSHARC 89\/B13, 10 BNA OSHC 1052, 1981 CCHOSHD ? 25,713 (No. 77-2100, 1981). The record fully supportscomplainant’s description of the violation as willful. Several directand unequivocal requests for the records were made and copies of thestandards and the OSHA handbook on recordkeeping were furnished Keco(Ex. C-17, C-18; Tr. 180-192). The continued refusal to produce therecords was an intentional disregard of the requirements of theregulations and was a willful violation of the Act.D. Willful Citation 2, Item 2, was amended to charge a violation of 29C.F.R. ? 1910.94(a)(5)(ii)(a) and (c) because of a failure to provide anabrasive-blasting respirator in the following respects:An abrasive blasting respirator was not being worn by all abrasiveblasting operators exposed to dusts in excess of the limits set in1910.1000 while performing abrasive blasting in an abrasive blasting room:On November 26, 1980, an abrasive blasting respirator (i.e., acontinuous flow airline respirator constructed so that it will cover thewearer’s head, neck and shoulders, was not being worn by the abrasiveblasting operator who was exposed to excessive levels of dust asdescribed below:The abrasive blasting operator was exposed to an airborne respirabledust level of 7.74 mg\/M3 of air on an 8-hour time weighted average basisinside the hood which he was wearing. This level exceeds the OSHAstandard of 5.00 mg\/M3 for respirable dust. This operator worked in atotally enclosed abrasive blasting enclosure.The sections cited require that an abrasive-blasting respirator be wornby operators when working inside a blast-cleaning room or whereconcentrations of toxic dust dispersed by the abrasive blasting mayexceed the limits set in ? 1910.1000 and the nozzle and blast are notphysically separated from the operation in an exhaust-ventilatedenclosure. Respondent did not furnish an abrasive-blasting respiratorwhich is defined as a continuos flow air-line respirator constructed sothat it will cover the wearer’s head, neck and shoulders. ?1910.94(a)(ii). Clearly, the respirator used at Keco’s facility was nota continuous flow air-line respirator as it did not have any air supply.The failure to provide a respirator is a violation if othercircumstances described in the regulations are met. Respondent contendsthat respondent’s abrasive-blasting building is an open, outsidefacility and is not a blast-cleaning enclosure (Tr. 383, 419-420).Respondent also contends the Secretary erroneously assumed that blastingwas performed eight hours a day and employees were exposed for thatperiod of time (Resp. brief pp. 6-7).Actually, the Secretary does not contend that blasting operations wereconducted eight hours a day, but the evidence does establish a dustlevel so high that it substantially exceeds the maximum permitted for aneight-hour time weighted average.The abrasive-blasting respirator is required under either of threeconditions, two of which the Secretary claims are met in this case.First, when the operator is working inside of blast-cleaning rooms, orsecondly, where the dust levels exceed those specified in ? 1910.1000and the nozzle and blast are not separated in an exhaust-ventilatedenclosure.Respondent’s abrasive-blasting operations are performed in a buildingsimilar to an automobile garage with an opening about the size of agarage door (Ex. R-2, R-3). The entry wall can be enclosed by a sheetof plastic which is attached above the opening. The plastic is placedover the opening when blasting is being done. Respondent contends isnot a blast-cleaning room and Mr. Nicholas J. Corbo, its expert witnessso testified. He based his conclusion on the definition in ? 1910.94that a forced-draft air system would be required for blast-cleaning room(Tr. 383, 419-420). Mr. Corbo’s description of a blast-cleaning room isnot supported by ? 1910.94(a)(1)(iv) which defines it as follows:A complete enclosure in which blasting operations are performed andwhere the operator works inside of the room to operate the blastingnozzle and direct the flow of the abrasive material.The record shows that abrasive blasting at Keco is performed in such afacility.In addition, the circumstances of ? 1910.94(a)(5)(ii)(c) are also met. Samples of dust taken on and about the abrasive-blasting operator showedhe was exposed to dust levels higher than those permitted by 29 C.F.R. ?1910.1000. The calculations of dust concentrations show a level insidethe hood of 7.74 mg\/M3 time weighted average for eight hours (Ex.C-1–C-5). Respondent does not dispute the dust level (Tr. 401-402). There is no exhaust-ventilated enclosure which physically separates theoperator from the blast. Neither is respondent’s activity the short,intermittent or occasional activity for which a dust respirator may beworn. ? 1910.94(a)(5)(iii). Noncompliance has been established.The evidence does not show a willful violation and as respondent did notconsent to try the issue as a serious violation, the item will beaffirmed as other than serious.E. Other Citation 3, Item 1, charges that respondent failed to properlyrecord two injuries in 1980 as required by OSHA form 200 and 29 C.F.R. ?1904.2(a).By referring to a log of injuries complainant discovered two injurieswhich should have been recorded in accordance with instructions on OSHAform 200. Respondent’s personnel manager consciously attempts toaccurately record the injuries, but because of oversight or incompleteinformation available to her failed to properly record an injury to anemployee requiring sutures and one involving second degree burns on theleft thumb of another employee.F. Other Citation 3, Item 2, alleges that protective equipment was notmaintained in a sanitary and reliable condition on November 18, 1980, asrequired by 29 C.F.R. ? 1910.132(a). The hood worn by the operator hadtorn places which would permit increased amounts of dust under the hoodand lessen the protection afforded by it (Ex. C-14).G. Other Citation 3, Item 3(a), charges that employees were exposed tomaterials in excess of the eight-hour time weighted average in violationof 29 C.F.R. ? 1910.1000(c). As previously discussed, theabrasive-blasting operator was exposed to 7.74 milligrams of dust percubic meter of air although the maximum permissible exposure level forinert or nuisance dust is 5 mg\/M3 on an eight-hour time weighted average.H. Other Citation 3, Item 3(c), alleges a violation of 29 C.F.R. ?1910.134(b)(1) by respondent’s failure to have written standardoperating procedures governing the selection and use of respirators. Respondent does not claim to have had written instructions (Tr. 166).I. Other Citation 3, Item 3(d), contends respondent violated 29 C.F.R.? 1910.134(b)(6) which requires that, \”[r]espirators shall be stored ina convenient, clean and sanitary location.\” During the walkaroundinspection, the compliance officer observed that the respirator was lefton the piece being blasted shortly after abrasive blasting had been doneand while dust was still hanging in the air. The compliance officer didnot see any storage area (Tr. 166-167). There is no indication thecompliance officer asked about a storage area.Mr. Cicchiani, respondent’s plant manager, testified a locker wasprovided for storage of the respirator which was located in the boilerroom and about 15 to 20 feet from the abrasive-blasting area (Tr.448-449). The evidence does not support complainant’s allegation andit will be vacated.J. Other Citation 3, Item 3(e), charges respondent with a violation of29 C.F.R. ? 1910.134(e)(5) which states as follows:For safe use of any respirator, it is essential that the user beproperly instructed in its selection, use, and maintenance. Bothsupervisors and workers shall be so instructed by competent persons. Training shall provide the men an opportunity to handle the respirator,have it fitted properly, test its face-piece-to-face seal, wear it innormal air for a long familiarity period, and, finally, to wear it in atest atmosphere.The Government contends that training was not provided including givingemployees an opportunity to handle the respirator, have it properlyfitted and worn in familiarity and test periods. Respondent asserts itfurnished respirators and filters and never reported any injuries oraccidents (Tr. 448).It is clear respondent did not train or fit employees in connection withthe use of respirators (Tr. 42-43, 167-168).IV_PENALTIES_Section 17(j) provides for the Review Commission to assess penalties asprovided in the Act. In determining the amount of penalty,consideration must be given to the gravity of the violation and the goodfaith, size and history of previous violations by the employer.Respondent had between 220 and 250 employees and had been investigatedpreviously although two of the prior citations had been dismissed. Theevidence showed few signs that, prior to the inspection, respondent hadsought to comply with the safety standards. The operator had to obtainhis own mask and the blasting hood was in poor condition. There were nowritten safety standards and the supervision was lax.A civil penalty of not more than $10,000 is provided for each willfulviolation under section 17(a) of the Act. Respondent willfully failedto produce records of injuries and illnesses, but the noncompliance didnot constitute a direct threat of injury to the employees. Under suchconditions, a penalty of $200 is appropriate for willful citation two,item one.Although cited as serious violations, the following violations arereclassified to other than serious and with the designated penalties:Citation 1, Item 1(a) 29 C.F.R. ? 1910.95(b)(1) excessive noise levels$250Citation 1, Item 2 29 C.F.R. ? 1910.178(m)(12)(i) the use of industrialtruck as a raised platform $100Willful citation two, item two, which charges that the abrasive-blastingroom was not equipped with a proper respirator as required by 29 C.F.R.? 1910.94(a)(5)(ii)(a) and (c) was reclassified to other than serious. A penalty of $250 is appropriate.Penalties were not proposed for other violations and none are assessed.V_ABATEMENT_All items other than purchase of a proper abrasive-blasting respiratorhave been abated or can be abated within a short period of time. Administrative control of excessive noise and dust can be accomplishedby rescheduling hours of work or rotating exposed employees. Therefore,all abatement of all violations other than citation two, item two, shallbe completed within 15 days following the date of the final order, andabatement of the cited violation shall be effected within 45 days of thedate of the final order._CONCLUSIONS OF LAW_1. The Review Commission has jurisdiction over the parties and thesubject matter.2. Respondent failed to comply with 29 C.F.R. ? 1904.7 under conditionswhich constituted a willful violation of the Act. A penalty of $200 isappropriate.3. Respondent failed to comply with the following regulations underconditions which constituted other than serious violations of the Act,with appropriate penalties set opposite thereto:a. \t29 C.F.R. ? 1910.95(b)(1) \t$250b. \t29 C.F.R. ? 1910.178(m)(12)(i) \t$100c. \t29 C.F.R. ? 1910.94(a)(5)(ii)(a) and (c) \t$250d. \t29 C.F.R. ? 1904.2(a) \t0e. \t29 C.F.R. ? 1910.132(a) \t0f. \t29 C. F. R. ? 1910.1000(c) \t0g. \t29 C. F. R. ? 1910.134(b)(1) \t0h. \t29 C.F.R. ? 1910.134(e)(5) \t0_ORDER_1. It is ordered as follows:Serious Citation 1a. Item 1(a) is reclassified to other than serious and is affirmed.b. Item 1(b) is vacated by agreement.c. Item 2 is reclassified to other than serious and affirmed.Willful Citation 2a. Item 1 is affirmed.b. Item 2 is reclassified to other than serious and is affirmed.Other Citation 3a. Item 1 is affirmed.b. Item 2 is affirmed.c. Item 3(a) is affirmed.d. Item 3(b) is vacated.e. Item 3(c) is affirmed.f. Item 3(d) is vacated.g. Item 3(e) is affirmed.2. Penalties of $800 are assessed.Dated this 6th day of May, 1982.JOE D. SPARKSJudgeFOOTNOTES:[[1]] Abrasive blasting is similar to sandblasting, except that ametallic grit is used as the blasting agent instead of sand. Despitethe frequent use of the term \”sandblasting\” throughout the record, it isundisputed that this case involves an abrasive blasting operation.[[2]] A fourth item is also referred to in the directions for review. However, the parties subsequently entered into a partial settlementagreement amicably disposing of that item. The Commission has alreadyentered an order granting this partial settlement.[[3]] The first chassis was removed from the facility and replaced bythe second at approximately 1:00 p.m., following the lunch break. Thealleged violation discussed in the last part of this decision, involvingthe use of the forks of the forklift to elevate operator Kraft, occurredat that time.[[4]] Table Z-3 of 29 C.F.R. ? 1910.1000 establishes the followinglimits for \”inert or nuisance dust\”:Respirable fraction …………. 5 mg\/M3Total dust ……………………… 15 mg\/M3[[5]] The definitions set forth at ? 1910.94(a)(1) suggest that thereare at least four types of \”blast-cleaning enclosures\” within themeaning of ? 1910.94(a)(3)(i)–\”blast cleaning barrels,\” \”blast cleaningrooms,\” \”blasting cabinets,\” and \”rotary blast cleaning tables.\” See ??1910.94(a)(1)(iii), (iv), (v) & (xi). This is consistent with paragraph4.1 of ANSI Z9.4-1968, American National Standard Ventilation and SafePractices of Abrasive Blasting Operations, which states:_Blast Cleaning Enclosures_. These include rotary blast cleaningtables, blast cleaning barrels and drums, abrasive blasting cabinets,blast cleaning rooms, abrasive separators, and similar enclosures.ANSI Z9.4-1968 was the source of 29 C.F.R. ? 1910.94(a). See ?1910.99. It is therefore appropriate to refer to the ANSI standard ininterpreting the OSHA standard. Finally, the reference in ?1910.94(a)(3)(i)(_e_)(_2_) to \”blast-cleaning rooms\” also confirms ourconclusion that \”blast-cleaning rooms\” are included within the generalcategory of \”blast-cleaning enclosures.\”[[6]] Mr. Upshaw had performed abrasive blasting operations for Keco asrecently as a month before the hearing. He testified to the effect thatabrasive blasting was performed on an irregular basis. At times, hewould engage in blasting more or less continuously for a full week. Onsome days, more than one chassis would be brought to the facility forblasting. In addition, he blasted other smaller objects, includingwheel rims, small air conditioners and other small parts. It wastherefore not unusual, in his experience, to spend an entire eight-hourwork shift engaged in abrasive blasting operations.At the time of the hearing, Mr. Upshaw was not working for Keco becauseof his refusal to cross a picket line in a labor-management dispute. Keco accordingly suggested to the judge that the witness was biased orantagonistic toward Keco. In connection with another item also onreview (citation 1, item 2), the judge expressly credited witness’testimony and rejected Keco’s argument:[Mr. Upshaw’s] testimony is consistent and believable . [Keco]contends…[Mr. Upshaw] was a dissident and hostile employee, but noreason is given to disbelieve his testimony….[[7]] A set of abrasive blasting instructions issued by Keco includedthe following instruction:Sandblast operator will not perform actual blasting for more than 2 1\/2hours accumulated time in any one 8-hour period.The evidence indicates, however, that these instructions were preparedin response to the instant OSHA inspection and issued sometime after thealleged violation. There is no evidence that similar instructions wereissued orally or in writing as prior to the date of the alleged violation.[[8]] Indeed, the record establishes that the type respirator permittedby this exception–a particulate filter respirator, commonly referred toas a dust-filter respirator–lacks the capacity to adequately protectKeco’s abrasive blasting operators. This was particularly true on theday of the cited violation. Keco’s expert witness testified that, atthe dust levels measured on that date, the dust-filter respirator wornby Mr. Kraft would have adequately protected him for slightly less threehours. The witness’s opinion that the operator was adequately protectedwas based on his assumption that the operator was exposed for no morethan two and one-half hours. However, Mr. Kraft was in fact exposed forfour hours and forty minutes.[[9]] We are, of course, aware that lead dust is \”toxic\” in someconcentrations. It is questionable, however, whether lead dust iscovered by ? 1910.94(a)(5)(ii)(_c_) since the exposure limits for leadare not \”limits set in ? 1910.1000\” but rather are limits established by? 1910.1025. In any event, this record provides no basis for concludingthat the presence of \”some\” lead in the abrasive blasting dust renderedthat dust \”toxic.\”[[10]] According to the Secretary’s evidence, the \”total dust\” level inthe room was 414 mg\/M3 on an eight-hour, time weighted average basis. Yet, the respirable dust level inside the blasting hood was only 7.74mg\/M3. It is therefore obvious that most of the dust was kept out ofthe operator’s breathing zone by the blasting hood. The dust-filterrespirator worn by the operator underneath the blasting hood presumablywould have further reduced the amount of dust actually breathed by theoperator.[[11]] It is undisputed that the welding department was responsible fortransporting the chassis, by forklift, between the production area andthe abrasive blasting facility. Plant manager Cicchiani testified thatboth welder foremen and welders were involved in transporting thechassis and setting them up for blasting. According to blastingoperator Glenn Upshaw, it was these same welding department employees,including the supervisors, who operated the forklift when it was used tolift the blasting operators to the roof of the abrasive blasting facility.[[12]] According to Mr. Upshaw, the ladder method involved thecooperative effort of two employees standing on separate ladders atopposite ends of the plastic tarpaulin. It is not clear whether asingle employee standing on a sawhorse could fold back the tarpaulin orwhether this method also required two employees.”