“Docket No. 81-0263 \u00a0SECRETARY OF LABOR, Complainant, v. KECO INDUSTRIES, INC., Respondent. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, LOCAL LODGE NO. 162, DISTRICT LODGE NO. 34, Authorized Employee Representative.OSHRC Docket No. 81-0263DECISIONBefore:\u00a0 BUCKLEY, Chairman, and WALL,Commissioner. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act,29 U.S.C. ? 659(c).Keco Industries, Inc., produces equipment for military and aerospace systems at its plantsin California and Ohio. During the relevant time period, employees at its Cincinnati,Ohio, plant were manufacturing 300-ton, mobile air conditioning units.\u00a0 To completethis project, Keco had built a garage-like facility where abrasive blasting operationscould be performed.[[1]] Beginning in November 1980, OSHA conducted an inspection ofKeco’s Cincinnati plant that focused on its abrasive blasting operations.\u00a0 Theinspection was conducted under a warrant issued by magistrate of the United StatesDistrict Court for the Southern District of Ohio. Before us on review are three items oftwo citations that were issued as a result of this inspection. [[2]]\u00a0 CommissionAdministrative Law Judge Joe D. Sparks affirmed all three of these items.\u00a0 However,he rejected the Secretary’s classification of two of the items and reduced the penaltiesproposed by the Secretary accordingly.Citation 2, Item 1: 29 C.F.R. ? 1904.7, Access toInjury and Illness LogsItem 1 of citation 2 alleged that Keco violated 29C.F.R. ? 1904.7 and that the violation was \”willful.\”\u00a0 The regulationprovides 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 logand summary of recordable occupational injuries and illnesses], for inspection and copyingby any representative of the Secretary of Labor for the purpose of carrying out theprovisions of the act . . . .[(b)](3) Access to the log provided under this section shall pertain to all logs retainedunder the requirements of ? 1904.6.The referenced regulation provides as follows: ? 1904.6 Retention of records.Records provided for in ?? 1904.2, 1904.4 and1904.5 (including form OSHA No. 200 and its predecessor forms OSHA No. 100 and OSHA No.102) shall be retained in each establishment, for 5 years following the end of the year towhich they relate. Judge Sparks found that Keco violated the regulation,held that the violation was willful, and assessed a $200 penalty.It is undisputed that, during the two-month periodcovered by OSHA’s inspection, the OSHA compliance officers repeatedly asked Keco’srepresentatives to make available to them the occupational injury and illness logs for thefive-year period preceding the inspection.\u00a0 It is also undisputed that Keco compliedwith the request only in part.\u00a0 It turned over its form OSHA No. 200 for the currentyear (1980), but refused to let the compliance officers examine and copy its logs for thefour preceding years (1976-1979). Keco did this because OSHA had refused the demand madeby Keco that OSHA put its request in writing and include in its request the reasons itwished to see the records.\u00a0 Keco claims that it was entitled to make that demandbecause OSHA had previously examined and copied the same records it wished to see again.\u00a0 Keco also claims that the Secretary was required to issue a subpoena for therecords.We conclude that Keco violated section 1904.7. \u00a0Notwithstanding the language of the regulation, an employer may refuse to comply with anoral request by OSHA for access to its injury records; it may instead assert its rightunder the fourth Amendment by demanding that OSHA present it with compulsory legalprocess–an inspection warrant or an administrative subpoena–that authorizes OSHA toexamine its records.\u00a0 See Kings Island, Div. of Taft Broadcasting Co., OSHRCDocket No. 82-1016 (March 18, 1987).\u00a0 In this case, however, OSHA made its repeatedrequests for access to Keco’s injury records after it had already presented Keco with aninspection warrant, Keco had moved to quash the warrant, and the magistrate had deniedKeco’s motion. The warrant authorized OSHA not only to conduct a physical examination ofthe worksite but also to examine all of Keco’s records that were pertinent to theinspection.\u00a0 Therefore, once OSHA presented Keco with the warrant and orallyrequested access to its injury records, Keco was required to comply with section 1904.7 byaffording OSHA unconditional access to the requested records. See ThermalReduction Corp., 85 OSAHRC ___, 12 BNA OSHC 1264, 1984-85 CCH OSHD ? 27,248 (No.81-2135, 1985).\u00a0 As Judge Sparks stated:After having lost its motion to quash the warrant,[Keco] was not entitled to prescribe the conditions under which the inspection could beconducted so long as it [the inspection] complied with the Act and the conditions of thewarrant.\u00a0 [Keco] was not entitled to impose what it considered to be \”abusinesslike condition.\”\u00a0 It certainly could ask that its needs be consideredbut [once OSHA had rejected its demand, it] could not refuse the request for [access to]records which are required to be kept and produced for inspection and copying.We also agree with the judge’s conclusion that theviolation was willful.\u00a0 A violation of the Act is willful if \”it was committedvoluntarily with either an intentional disregard for the requirements of the Act or plainindifference to employee safety.\”\u00a0 Simplex Time Recorder Co., 85OSAHRC ___, 12 BNA OSHC 1591, 1595, 1985 CCH OSHD ? 27,546, p. 35,571 (No. 82-12, 1985).Here, Keco was well aware of the requirements of section 1904.7.\u00a0 It had previouslybeen cited for violating this same regulation approximately 17 months before the issuanceof the citation that is now before us.\u00a0 Indeed, this earlier citation involved adenial of access to some of the same records–Keco’s 1976 and 1977 logs–that are at issuein this case.\u00a0 In addition, the repeated requests that OSHA made for the recordsduring the inspection gave Keco several opportunities to conform its conduct to theregulation’s requirements.\u00a0 Under these circumstances, Keco’s continued refusal toproduce the records can only be characterized as an intentional disregard of the knownrequirements of section 1904.7.Nor is there any indication that Keco acted on a goodfaith belief that its conduct conformed to the law.\u00a0 Keco argues before us that theSecretary was required to obtain an administrative subpoena compelling production of therecords, but it did not demand a subpoena at any time during the inspection and it was infact presented with alternative legal process–an inspection warrant–authorizing accessto tie records.\u00a0 See Kings Island; Thermal Reduction.\u00a0Although Keco received the advice of counsel throughout the inspection, it makes noclaim that it was basing its actions on that advice when it refused to turn over therecords unless the compliance officer first submitted a signed, written request detailingthe reasons he wished to see the records.\u00a0 Nor does it argue that this demand shouldbe construed as an inartful request for an administrative subpoena.\u00a0 In fact, thefirst reference Keco made to a subpoena during the course of these proceedings was in itsbrief on review.Although he found the violation to be willful, JudgeSparks assessed a penalty of $200 instead of the $1000 proposed by the Secretary. \u00a0On review, the Secretary does not take exception to the judge’s penalty assessment.\u00a0Accordingly, we affirm the judge’s assessment of a $200 penalty.Citation 2, Item 2:\u00a0 29 C.F.R. ? 1910.94(a)(5)(ii)(a) & (c), Abrasive-Blasting RespiratorsItem 2 of citation 2, as amended at the hearing,alleged that Keco violated section 1910.94(a)(5)(ii)(a) & (c).\u00a0 Italso alleged that the violation was willful.\u00a0 The standard provides:? 1910.94 Ventilation. (a) Abrasive blasting–(5) Personal protective equipment.(ii) Abrasive-blasting respirators shall be worn by all abrasive-blasting operators:(a) When working inside of blast-cleaningrooms, or (c) Where concentrations of toxic dust dispersed by the abrasive blasting mayexceed the limits set in ? 1910.1000 and the nozzle and blast are not physicallyseparated from the operator in an exhaust-ventilated enclosure.Judge Sparks affirmed this citation item as amended,held that the violation was nonserious rather than willful, and assessed a $250 penalty.A There is no dispute that, on November 26, 1980,Keco’s abrasive blasting operator, Richard Kraft, was not wearing an\”abrasive-blasting respirator.\”\u00a0 The Secretary alleged, and Judge Sparksfound, that two subparagraphs of section 1910.94(a)(5)(ii) required the wearing of such arespirator:–Subparagraph (a), because employee Kraftperformed his work inside a \”blast-cleaning room,\” and–Subparagraph (c), because during abrasive blasting operations Kraft was exposedto levels of dust that exceeded the permissible level stated in 29 C.F.R. ? 1910.1000 butwas not physically separated from the nozzle and blast by an exhaust-ventilated enclosure.If we were to adopt either of these two findings, we would conclude, as the judge did,that under the terms of section 1910.94(a)(5)(ii), Keco had a duty to require Mr. Kraft towear an abrasive-blasting respirator.\u00a0 However, Keco disputes both of these findings,and it also argues that other standards, sections 1910.94(a)(5)(iii) and1910.94(a)(5)(iii)(a), permitted Mr. Kraft to wear a dust-filter respirator insteadof an abrasive-blasting respirator.\u00a0 After setting forth some of the background tothis dispute, we will consider each of these arguments in turn.The inspection that precipitated the present citationbegan with an opening conference and a walkaround tour on November 18. However, noabrasive blasting was being performed on that date.\u00a0 Accordingly, compliance officersSteve Messinger and Jim Sweeney stated their intention to return at a later date for thepurpose of observing the abrasive blasting operations and conducting environmentalmonitoring.\u00a0 The compliance officers asked Keco’s president, George Andrews, \”tolet us know when the next average, or usual or normal amount of abrasive blasting would beperformed so that we could return on that day and perform monitoring for noise anddust.\”\u00a0 Mr. Andrews selected November 26 as a normal day for abrasive blasting.On November 26, abrasive blasting operator Kraftperformed blasting operations, for four hours and forty minutes (excluding a lunch break).\u00a0 During this time, Mr. Kraft performed abrasive blasting on two large metalchassis.[[3]]\u00a0 Approximately two-thirds to three-fourths of this work time was spentactually blasting the workpieces.\u00a0 The remainder of the time was spent on relatedtasks and work areas.During this 280-minute sampling period, OSHA tookseveral environmental (air contaminant) samples, including both personal samples (devicesattached to operator Kraft) and area samples.\u00a0 The samples taken measured theconcentration levels of (a) respirable dust inside the operator’s blasting hood, (b) totaldust just outside the hood, and (c) total dust just outside of the abrasive blastingfacility.\u00a0 These measured 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\/M3 Total dust, outside facility 24.0 mg\/M3The samples taken inside the operator’s blasting hoodshowed exposure to dust levels exceeding the permissible level for respirable inert ornuisance dust.\u00a0 The samples taken outside the blasting hood showed dust levelsapproximately 28 times the permissible level for total inert or nuisance dust.[[4]]During the blasting, operator Kraft wore a blastinghood or helmet that covered his head, neck and shoulders.\u00a0 The hood was notair-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.\u00a0 Beneath thehood, Mr. Kraft wore a half-mask respirator with replaceable cartridges, commonly known asa dust-filter respirator.\u00a0 According to Keco’s expert witness, Nicholas Corbo, at thelevels of dust measured by OSHA during the inspection, the respirator worn by operatorKraft would provide adequate protection for slightly less than three hours.\u00a0 Keco didnot make available (and apparently did not own) an \”abrasive-blastingrespirator\” as defined by section 1910.94(a)(1)(ii), that is, a continuous-flow,air-supplied respirator that protects the head, face, neck and shoulders.1.We first analyze whether Mr. Kraft was working insidea blast-cleaning room.\u00a0 The garage-like facility that Keco had built at its plant wasused primarily for abrasive blasting of the chassis of the 300-ton, mobile airconditioning units.\u00a0 These chassis were sufficiently large that it was necessary touse a forklift to transport them between the production area and the blasting facility.\u00a0 Like a garage, the facility was open on one side, allowing easy ingress and egressby the forklift with its load.\u00a0 However, during abrasive blasting operations, theopen side was fully covered by a plastic tarpaulin so that the dust created during theoperation would be contained within the facility.\u00a0 Judge Sparks found that thegarage-like facility used by Keco in its abrasive blasting operations was a\”blast-cleaning room\” within the meaning of section 1910.94(a)(5)(ii)(a)and concluded that operator Kraft therefore should have been wearing an abrasive-blastingrespirator.\u00a0 Keco argues that the judge erred because its facility was not a\”blast-cleaning room.\”We conclude that Keco’s abrasive blasting facilitywas a \”blast-cleaning room\” as that term is defined in section1910.94(a)(1)(iv), i.e., \”[a] completed enclosure in which blasting operations areperformed and where the operator works inside of the room to operate the blasting nozzleand direct the flow of the abrasive material.\”\u00a0 Only one part of this definitionraises any problem.\u00a0 The parties disagree as to whether Keco’s blasting facility is a\”complete enclosure\” within the meaning of section 1910.94(a)(1)(iv). Althoughone side of the enclosure consisted of a plastic tarpaulin rather than a wall, andalthough one or more sides contained a window, we conclude that Keco’s facility was a\”complete\” enclosure.Enclosing the room was the primary reason forcovering its entrance with the plastic tarpaulin.\u00a0 As stated by Keco in its brief onreview, \”When blasting operations are under way, the doorway is covered with a largeplastic tarp to lessen the escape of abrasive material.\”\u00a0 The Secretary’senvironmental sampling results confirm that the tarpaulin indeed completed the enclosureof the facility. Inside the facility, the eight-hour, time-weighted-average level of totaldust was 414 mg\/M3.\u00a0 Outside the facility, specifically just outside a window, thetotal dust level was only 24 mg\/M3.\u00a0 This evidence establishes that virtually all ofthe dust generated by the abrasive blasting operations was contained within the enclosure,thereby making it a \”complete\” enclosure.\u00a0 Finally, that the room was a\”complete enclosure\” within the meaning of section 1910.94(a)(1)(iv) isconfirmed by the testimony of compliance officer Sweeney that the dust levels inside theenclosure were \”thick enough to substantially reduce visibility\” and comparableto \”a snow storm or blizzard.\”Keco’s argument against classifying its facility as a\”blast-cleaning room\” is based primarily on the opinion testimony of its expertwitness, Nicholas Corbo.\u00a0 We conclude, however, that that testimony is entitled tolittle weight.\u00a0 In expressing his opinion that Keco’s facility was not a\”blast-cleaning room,\” Mr. Corbo reasoned that it did not fall within thedefinition because it was not a \”closed facility.\”\u00a0 He described thefeatures of a \”closed facility\” as follows:[A] closed facility would be one that would betotally contained.\u00a0 It would have a forced-draft air system to some extent to collectthe particles and deposit them somewhere out of the room.\u00a0 The only source of outsideair would that–from that forced draft that forced draft situation….In essence, therefore, Mr. Corbo concluded thatKeco’s facility was not a \”blast-cleaning room\” because it did not have aforced-draft ventilation system.\u00a0 This is not, however, how the standard defines theterm.\u00a0 The definition in section 1910.94(a)(1)(iv) says nothing about a forced-draftventilation system.\u00a0 The standard’s definition is controlling here.\u00a0 Moreover,adopting Mr. Corbo’s definition would create an absurdity in the standard.\u00a0 Section1910.94(a)(3)(i) sets forth a requirement that \”[b]last-cleaning enclosures[including blast-cleaning rooms] shall be exhaust ventilated in such a way that acontinuous inward flow of air will be maintained at all openings in the enclosure duringthe blasting operation.\”[[5]]\u00a0 Yet, this standard would be rendered inapplicableto the unventilated enclosures it forbids if we were to define \”blast-cleaningenclosures\” as ventilated enclosures.2.Alternatively, Keco argues that sections1910.94(a)(5)(iii) and 1910.94(a)(5)(iii)(a) expressly permitted the use of thedust-filter respirator worn Mr. Kraft.\u00a0 These standards provide:? 1910.94\u00a0 Ventilation.(a) Abrasive Blasting–(5) Personal protective equipment.(iii) Particulate filter respirators, commonlyreferred to as dust-filter respirators, properly fitted, may be used for short,intermittent, or occasional dust exposures such as cleanup, dumping of dust collectors, orunloading shipments of sand at a receiving point, when it is not feasible to control thedust by enclosure, exhaust ventilation, or other means….(a) Dust-filter respirators may be used toprotect the operator of outside abrasive-blasting operations where nonsilica abrasives areused on materials having low toxicities.Keco’s argument that these were the type of\”short, intermittent, or occasional dust exposures\” referred to in section1910.94(a)(5)(iii) is based on the testimony of its plant manager, Melio Cicchiani, and ofits expert witness, Mr. Corbo.\u00a0 Based on the plant manager’s testimony, Keco assertsthat its employees were exposed to abrasive blasting for no more than two and one-halfhours a day.\u00a0 It argues, citing the testimony of its expert witness, that adequateprotection is provided at this level of exposure by a dust-filter respirator.\u00a0 Kecoacknowledges the evidence that employee Kraft worked in the blasting facility for fourhours and forty minutes on the day OSHA sampled his exposure.\u00a0 However, it in effecturges as to disregard this evidence because employee Kraft worked that day \”at thedirection of\” the compliance officers.Judge Sparks rejected Keco’s claims concerning theduration and extent of its abrasive blasting operations.\u00a0 He found that the frequencyof the blasting varied.\u00a0 At times, blasting took place on several consecutivedays.\u00a0 Usually, however, it occurred only two or three days a week. \u00a0The judgealso found that \”[o]n some days the operator worked his full eight-hour shiftperforming abrasive-blasting operations, but it was more common for him to work six orseven hours in such work…Keco’s arguments against the judge’s dispositionassume that, if its operator 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, the Commission could under section1910.94(a)(5)(iii) permit Keco to dispense with the abrasive-blasting respirator requiredby section 1910.94(a)(5)(ii)(a).\u00a0 We are not convinced that this be faithfulto section 1910.94(a)(5)(iii).\u00a0 That section permits the use of dust-filterrespirators instead of abrasive-blasting respirators in only limitedcircumstances–\”for short, intermittent, or occasional dust exposures such as [thoseduring] cleanup, dumping of dust collectors, or unloading shipments of sand at a receivingpoint….\” The examples given by the standard of \”short, intermittent, oroccasional dust exposures\” indicate that dust-filter respirators are permitted onlyduring unusual or brief activities connected with but not directly involving abrasiveblasting.\u00a0 Though the examples given–cleanup, emptying of dust collectors andunloading of sand–are not exclusive, they do indicate the kinds of activities that thestandard was intended to cover.\u00a0 See Jarecki v. G.D. Searle & Co.,367 U.S. 303, 307 (1961) (\”a word is known by the company it keeps\”).\u00a0 Inaddition, this record contains no evidence that, during the abrasive blasting operation,it was not \”feasible to control the dust by enclosure, exhaust ventilation, or othermeans…\” within the meaning of section 1910.94(a)(5)(iii).In any event, we find no basis to overturn thejudge’s finding that the abrasive blasting performed by Keco’s employee resulted inexposures that were not \”short, intermittent, or occasional dust exposures….\”Judge Sparks specifically rejected Keco’s claim that its blasting operations neverexceeded two and one-half hours.\u00a0 He concluded that this contention was\”directly refuted\” by the Secretary’s evidence that operator Kraft engaged inabrasive blasting over a 280-minute sampling period on November 26.\u00a0 Citing thisevidence, as well as the testimony of abrasive blasting operator Glenn Upshaw, the judgefound as follows:Although [Keco] contends an operator would not spendmore than two and a half 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 supportedby the record and that Keco has provided no grounds for setting them aside. We thereforeadopt the judge’s findings as our own.\u00a0 Specifically, the judge’s findings aresupported by the testimony of blasting operator Upshaw that he sometimes had engaged inblasting more or less continuously for a full week.\u00a0 Despite Keco’s challenge to thattestimony, the judge found that it was \”consistent and believable.\”[[6]]\u00a0We find no basis in this record for overturning the judge’s credibilitydetermination.\u00a0 See, e.g., Inland Steel Co., 86 OSAHRC, 12 BNAOSHC 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’stestimony was not \”rebutted by the clear testimony\” of plant managerCicchiani.\u00a0 The plant manager testified only that it was possible to completethe abrasive blasting of a single chassis in two or two and one-half hours (\”It couldbe done\”).\u00a0 He gave no testimony that abrasive blasting was in fact limited totwo and one-half hours per day.[[7]]\u00a0 On the contrary, he testified that\”sometimes they are out there three or four hours, but they aren’t sandblasting thewhole time.\”\u00a0 Moreover, Mr. Cicchiani corroborated Mr. Upshaw’s testimony thatthe blasting operators sometimes blasted two chassis in a single day and that they blastedsmaller items, e.g., connectors and rings, in addition to the chassis.\u00a0 UsingMr.Cicchiani’s own calculations, it appears that an operator could not blast two chassisin less than four to five hours.We also agree with the judge’s implicit finding thatMr. Upshaw’s testimony is corroborated by the evidence concerning the blasting operationson November 26, the day operator Kraft’s exposure was sampled.\u00a0 As noted, Mr. Kraftperformed work on two chassis on that date over a 280-minute period. \u00a0Contrary toKeco’s suggestions, there is no indication in this record that this sampling was in anyway staged or lengthened by the OSHA compliance officers.\u00a0 In fact, it was Keco’spresident who selected November 26 as a typical day for blasting operations.\u00a0 In anyevent, Keco made no attempt to rebut compliance officer Sweaney’s testimony that he andcompliance officer Messinger asked operator Kraft to perform his work in a normal manner.In sum, we disagree with Keco’s argument that thesewere the type of \”short, intermittent, or occasional dust exposures\” referred toin section 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).\u00a0 Thisprovision must be read in conjunction with the general rule that dust-filter respiratorsare permitted only for \”short, intermittent or occasional dust exposures.\”\u00a0The obvious intent of section 1910.94(a)(5)(iii), when read in the context of thestandard as a whole, is to define exceptional circumstances when an employee may wear adust-filter respirator rather than an abrasive-blasting respirator.\u00a0 When viewed inthis context, the \”outside\” operations exception clearly refers to outdooroperations where the absence of an enclosure allows for dispersion of the dust createdduring abrasive blasting.\u00a0 This provision does not apply to operations inside theenclosed blasting facility at Keco’s workplace, where a concentration of dust 28 times thepermissible limit for total inert or nuisance dust accumulated during the sampling period.3.We therefore agree with Judge Sparks that Keco wasrequired by section 1910.94(a)(5)(ii)(a) to provide operator Kraft with anabrasive-blasting respirator.\u00a0 We will therefore affirm item 2 of citation 2 on thatground.\u00a0 Ordinarily, it would be unnecessary to reach the question whether Keco wasalso obligated by section 1910.94(a)(5)(ii)(c) to provide the sameabrasive-blasting respirator.\u00a0 However, the Secretary’s argument that Keco’sviolation was willful is based in part on his argument that Keco violated both subsections(a) and (c) of section 1910.94(a)(5)(ii).\u00a0 We will therefore review thejudge’s finding that Keco violated subsection (c).Abrasive-blasting respirators are required undersection 1910.94(a)(5)(ii)(c) if \”concentrations of toxic dust dispersed by theabrasive blasting\” may exceed any of the exposure limits listed in section 1910.1000and \”the nozzle and blast are not physically separated from operator in anexhaust-ventilated enclosure.\”\u00a0 There is no dispute on this latter criterion;employee Kraft worked in the same room as the blasting, and he was not physicallyseparated from it by an exhaust-ventilated enclosure.\u00a0 Judge Sparks found that thefirst criterion was also satisfied because samples of dust taken on and about employeeKraft showed that he was exposed to dust levels higher than those permitted by section1910.1000.\u00a0 More particularly, the judge found the dust levels dispersed by theabrasive blasting exceeded the 5 mg\/M3 limit for respirable \”inert or nuisancedust,\” a limit established by Table Z-3 of section 1910.1000.\u00a0 On review, Kecodisputes this finding.We find no error in the judge’s findings on the leveland duration of operator exposure to abrasive blasting dust.\u00a0 We nevertheless cannotconclude that Keco violated section 1910.94(a)(5)(ii)(c), for the Secretary failedto prove that the dust was a \”toxic dust\” within the meaning of the standard.The Secretary did establish, at least generally, thecomposition of the abrasive blasting dust.\u00a0 Compliance officer Sweeney described thematerial used in Keco’s blasting operations as \”Black Beauty abrasive blasting grit,a slag material.\”\u00a0 An OSHA lab analysis of some of the dust samples revealed\”large quantities\” of iron and calcium, \”substantial quantities\” ofaluminum and \”some\” lead.\u00a0 The compliance officer also listed six othermetals that the lab did not test for but that are usually found in the type of abrasivegrit used by Keco.However, the record contains no evidence that thedust was \”toxic\”.[[9]]\u00a0 No witness testified, and no documentary evidencestates, that the dust is \”toxic.\”\u00a0 Nor is there any evidence from which wecould reach that conclusion.\u00a0 The record is simply silent on the question of whateffect, if any, exposure to the dust would have on a person who breathed the dust. \u00a0We also note that the Secretary’s allegations in this case may be internallyinconsistent.\u00a0 Specifically, we question whether an \”inert or nuisancedust\” within the meaning of Table Z-3 can ever be classified as a \”toxic\”dust.\u00a0 See Bunge Corp., 86 OSAHRC, 12 BNA OSHC 1785, 1986 CCH OSHD ?27,565 (No. 77-1622, 1986) (meaning of term \”inert or nuisance dust\”).\u00a0Since section 1910.94(a)(5)(ii)(c) applies only to abrasive blastingoperations that disperse \”toxic dust,\” we cannot find that Keco violated thatsection.BAs we stated previously, a violation of the Act iswillful if it was committed voluntarily with either an intentional disregard for therequirements of the Act or plain indifference to employee safety.\u00a0 Here, Judge Sparksvacated the Secretary’s allegation that Keco’s violation of section 1910.94(a)(5)(ii) waswillful.\u00a0 On review, the Secretary argues that the judge erred.\u00a0 The Secretaryrelies heavily on a letter written in August 1979, slightly more than a year before theviolation now at issue.The citations now on review were issued as a resultof an inspection that began in November 1980 and ended in January 1981. Before this,however, OSHA had also inspected Keco’s workplace in August 1979.\u00a0 At that time, noabrasive blasting was being performed at the workplace.\u00a0 Following the inspection, onAugust 28, 1979, OSHA’s Acting Area Director Frank Memmott wrote a letter to Keco’sPresident George Andrews, which stated in part:During an inspection of Keco Industries, Incorporated conducted on August 13-15, 1979, thefollowing conditions were observed: Abrasive blasting is conducted in an unventilated hutoutside of building A by an employee who wears a half-face dust respirator, a face shield,canvass gloves and a heavy canvass coat.\u00a0 Since the unventilated enclosure would tendto contain dust generated during the operation, the operator should as a minimum beprovided with an abrasive blasting operation respirator when working in this type ofenclosure….The abrasive blasting operation cannot be considered as an outside operationbecause the area the operator works in is a confined area.\u00a0 There are specificrequirements for the quality of the breathing air supplied to abrasive blastingrespirators set forth in ANSI Z9.2-1960.The abrasive blasting operation was last performed inmid July of 1979.\u00a0 It was not observed at the time of the inspection and exposureconditions could not be adequately reconstructed at the time of the inspection. \u00a0Theabrasive blasting standard 1910.94(a) should be carefully reviewed for compliance with thestandard prior to the next blasting operation.\u00a0 We may contact you in the future toobserve the abrasive blasting operation.\u00a0 Please indicate to us in a letter thecorrective actions planned in the abrasive blasting room.The Secretary argues that this letter gave Keconotice that the standard applied to its blasting operations.\u00a0 In addition, theSecretary continues, the letter specifically informed Keco that it did not fall within thestandard’s \”outside…operations\” exception and therefore that a dust-filterrespirator would not be adequate protection for the abrasive blasting operator.\u00a0 TheSecretary further notes that it is undisputed that the blasting operations described inthe August 1979 letter were the same operations later cited in the citation that is nowbefore us.In response, Keco contends that its violation of thestandard was not willful because it did not ignore the requirements of the standard.\u00a0Instead, it disagreed in good faith the Secretary’s interpretation of the standard.\u00a0Keco argues that it believed that its operations were governed by the provisionsthat allow use of a dust-filter rather than the provisions that require use of anabrasive-blasting respirator.\u00a0 Accordingly, Keco concludes, the violation was notwillful because it complied with those provisions of the abrasive blasting standard thatit believed to be applicable to its operations.A willful charge is not justified if an employer hasmade a good faith effort to comply with a standard or to eliminate a hazard even thoughthe employer’s efforts are not entirely effective or complete.\u00a0 E.g., AsbestosTextile Co., 84 OSAHRC, 12 BNA OSHC 1062, 1063, 1984-85 CCH OSHD ? 27,101, p. 34,948(No. 79-3831, 1984).\u00a0 In addition, a good faith, reasonable belief by an employerthat its conduct conformed to the law negates a finding of willfulness.\u00a0 E.g.,RSR Corp., 83 OSAHRC 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 ofsection 1910.94(a)(5)(ii)(a) was not willful.\u00a0 Keco did not ignore the requirementsof the abrasive blasting standard.\u00a0 Nor was it indifferent to the safety and healthof its abrasive blasting operators.\u00a0 It supplied its the safety and health of itsabrasive blasting operators.\u00a0 It supplied its abrasive blasting operators with both ablasting hood or helmet 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 blasting standard that itbelieved to be applicable to its blasting operations.Although we have concluded that this belief waserroneous, we cannot conclude that it was unreasonable and held in bad faith. Kecointerpreted the critical term \”complete enclosure\” as being inapplicable to itsblasting facility because its facility had an open side covered only by a plastictarpaulin and it also had one or more windows in three walls.\u00a0 Keco also disagreedwith the view expressed in OSHA’s letter that its operation was not an \”outside\”blasting operation because it was in \”a confined area.\”\u00a0 The letter fromOSHA’s acting area director to Keco’s president does not make clear which provision of theabrasive blasting standard the OSHA official was relying upon as the basis of his opinionor even if the official was basing his opinion on the standard’s terms. \u00a0Significantly, the letter does not use the term \”blast-cleaning room\” and itdoes not discuss whether Keco’s facility fell within the definition of that term. \u00a0Inview of this incomplete and ambiguous explanation of the Secretary’s position, we cannotconclude that Keco acted unreasonably in disagreeing with it.\u00a0 Moreover, although wehave in effect adopted OSHA’s interpretation of the standard and rejected Keco’s, thestandard is not so clearly written as to render Keco’s position indefensible orimplausible.\u00a0 In fact, Keco’s interpretation was supported by the testimony of itsexpert witness, a professional consulting engineer.Accordingly, we agree with Judge Sparks that Keco’sviolation of section 1910.94(a)(5)(ii)(a) was not willful.\u00a0 We also agree withthe judge that the violation cannot be classified as \”serious\” because there wasno allegation by the Secretary that the violation was serious and because the issue wasnot tried by the parties.\u00a0 We therefore affirm the judge’s order classifying theviolation as nonserious and assessing a $250 penalty.Citation 1, Item 2:\u00a0 Section1910.178(m)(12)(i),Lack of Elevating Safety PlatformItem 2 of citation 1 alleged a serious violation of section 1910.178(m)(12)(i), whichprovides:? 1910.178\u00a0 Powered industrial trucks.(m) Truck operations.(12) Whenever a truck is equipped with vertical only,or vertical and horizontal controls elevatable with the lifting carriage or forks forlifting personnel, the following additional precautions shall be taken for the protectionof personnel being elevated.(i) Use of a safety platform firmly secured to thelifting carriage and\/or forks.Judge Sparks affirmed this citation item, held thatthe violation was nonserious rather than serious, and assessed a $100 penalty.It is undisputed that the two OSHA complianceofficers observed a violation of this standard on the second day of the inspection, thatis, the day they returned to conduct environmental and noise sampling of the abrasiveblasting operations.\u00a0 The question here is whether the Secretary proved that Keco hadactual or constructive knowledge of the violative conditions.\u00a0 See, e.g.,A. Amorello & Sons Inc., 86 OSAHRC, 12 BNA OSHC 1641, 1986 CCH OSHD ?27,483 (No. 79-4703, 1986).\u00a0 There is no evidence that any of Keco’s supervisors hadactual knowledge of the particular incident that resulted in the citation.\u00a0 Wetherefore inquire whether Keco had constructive knowledge.\u00a0 Constructive knowledgeexists where the employer could have known of the violative conditions if it had exercisedreasonable diligence.\u00a0 Id.At approximately 1:00 p.m. on the second inspection day, the compliance officers werereturning to the abrasive blasting facility to resume noise and dust sampling, following alunch break.\u00a0 Keco’s employees were removing the chassis that had been blasted in themorning and replacing it with a second chassis that would be blasted during the afternoon.\u00a0This required that the plastic tarpaulin covering the entrance be lifted onto theroof.As the compliance officers approached the abrasiveblasting facility, they saw blasting operator Kraft standing on the forks of a forkliftabout seven feet in the air.\u00a0 He was lifting the plastic tarpaulin up from theentrance of the facility and placing it onto the roof.\u00a0 According to complianceofficer Sweeney, the two compliance officers were from 30 to 35 feet away from thefacility when they first observed operator Kraft.\u00a0 The employee was already sevenfeet in the air at that time.Judge Sparks found that \”[a] common way toattain the height necessary to handle the plastic [tarpaulin] was for an employee to standon the forks….\” He further found that Keco’s supervisors, specifically its weldingdepartment foremen, not only were aware of this practice but also participated init.[[11]]\u00a0 In addition he found that, while Keco had a safety platform for use inlifting personnel, \”[t]he existence of the platform was not known by employees and itwas not used…until after the date of the inspection.\”\u00a0 In entering thesefindings, the judge relied principally upon the testimony of blasting operator Upshaw,which he expressly found to be \”consistent and believable.\”\u00a0 Mr. Upshawtestified to the effect that the most common way for the abrasive blasting operators tofold the plastic tarpaulin up on top of the roof was for them to be elevated to the rooflevel on the forks of the forklift.\u00a0 He explained that, from this position, theycould easily perform the task that, while the task could be, and sometimes was, performedwhile standing on sawhorses or ladders, the forklift method was the easiest.[[12]]\u00a0On the basis of findings, including stated above, Judge Sparks concluded that Kecohad violated section 1910.178(m)(12)(i).Keco argues that the judge’s finding are contradictedby the testimony of plant manager Cicchiani, who stated that Keco had had a safetyplatform \”for a long time,\” that it was used for lifting both workers andmaterial, that \”the personnel in the plant that operate the forklift\” had beeninstructed not to lift other employees without using the safety platform, and that\”in November 1979 (sic)\” it would not have been \”permissible\” forforklift operator to lift blasting operator Kraft on the forks of the forklift operator tolift blasting operator Kraft on the forks of the forklift without using a platform. \u00a0According 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 ofthe violated section 1910.178(m)(12)(i).\u00a0 The judge expressly found blasting operatorUpshaw to be a credible witness, and we accept his evaluation of Mr. Upshaw’scredibility.\u00a0 See Inland Steel Co., 12 BNA OSHC at 1978, 1986 CCH OSHDat p. 36,005.\u00a0 Mr. Upshaw’s testimony establishes that it was a common practice forabrasive blasting operators to be lifted on the forks of the forklift, without using thesafety platform, and that at least some of Keco’s supervisors knew of this practice.\u00a0 Mr. Cicchiani’s testimony that Keco had a safety platform and that forkliftoperators were instructed to use it does not negate our finding of constructive knowledgebecause the record establishes that these instructions were routinely disregarded.\u00a0 SeeTed 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 thatKeco violated section 1910.178(m)(12)(i).\u00a0 We also affirm the classification of theviolation as nonserious and the assessment of a $100 penalty.Accordingly, the Commission modifies item 2 ofcitations by vacating the allegation that Keco violated section 1910.94(a)(5)(ii)(c).With this exception, the judge’s order affirming items 1 and 2 of citation 2 and item 2 ofcitation 1, and assessing penalties of $200, $250, and $100, respectively, is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 March 27, 1987SECRETARY OF LABOR, Complainant, v. KECO INDUSTRIES, INC., Respondent, and\u00a0 INTERNATIONAL ASSOCIATION OF MACHINES AND AEROSPACE WORKERS, AFL-CIO, LOCAL LODGE NO. 162, DISTRICT LODGE NO. 34 Authorized Employee Representative.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 ORDERSPARKS, Judge:\u00a0 Following an inspectionconducted pursuant to a complaint, three citations were issued on January 14, 1981,charging Keco Industries with \”serious,\” \”willful\” and\”other\” violations of the Occupational Safety and Health Act of 1970 (the\”Act\”).Keco is engaged in producing equipment for militaryand aerospace systems at plants in California and Cincinnati, Ohio.\u00a0 This caseinvolves abrasive-blasting operations primarily on air conditioning units produced for theU.S. Navy at the Cincinnati plant. Abrasive blasting is similar to sandblasting but usedmetallic grit rather than sand.Complainant charges that employees were subjected toexcessive levels of noise and respirable dust, a proper respirator was not worn, aprotective blasting hood was not maintained in proper repair and employees were permittedto use an industrial truck as a raised platform.\u00a0 In addition, respondent is chargedwith failing to make and keep certain required records, failing to produce other recordswhen requested and other violations.IISSUESAmendments granted at the hearing leave the followingissues for decision (Tr. 26-33):1.\u00a0 Whether the evidence establishes seriousviolations of 29 C.F.R.? 1910.95(b)(3) caused by excessive noise levels.2.\u00a0 Whether respondent’s employees used anindustrial truck to lift personnel without a firmly secured safety platform underconditions constituting a serious violation of 29 C.F.R. ? 1910.178(m)(12)(i).3.\u00a0 Whether there were willful violations of 29C.F.R. ? 1904.7 caused by 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 employeeswere not wearing abrasive blasting respirators and were exposed to airborne respirabledust in excess of permissible limits.4.\u00a0 Whether the evidence establishes an\”other than serious\” violation of 29 C.F.R. ? 1904.2(a) in that the record ofoccupational injuries and illnesses failed to contain two recordable injuries and otherviolations.5.\u00a0 Whether respondent has established any affirmative defenses.6.\u00a0 The appropriate penalties to be assessed ifviolations are found.7.\u00a0 The appropriate abatements dates ifviolations are found.After consideration of the evidence in the record,the following facts have been established:IIFINDINGS OF FACT1.\u00a0 Respondent employed approximately 220 to 250employees at the time of the inspection (Tr. 200, 454).2.\u00a0 The abrasive-blasting task which wasperformed most often was of a chassis of a 300-ton air conditioner, but similar work wasdone on other items (Tr. 40, 437, 443).3.\u00a0 Abrasive blasting was not performed everyday and was often performed less than a full day (Tr. 40, 437).4.\u00a0 The frequency of sandblasting varied, attimes it was performed several days consecutively but usually two or three days a week(Ex. C-8; Tr. 55-58, 439).5.\u00a0 On some days the operator worked his fulleight-hour shift performing 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.\u00a0 Although respondent contends an operatorwould not spend more than two and half hours abrasive blasting a chassis, I find that onoccasion much more time was spent in such operations in a day (Ex. C-1, C-2; Tr. 58, 102,439, 454).7.\u00a0 At the time of the OSHA walkaroundinspection, there was available to the abrasive-blast operators a hood with plasticshield. The helmet had a rip in it which reduced the level of protection.\u00a0 At thetime the sampling took place on November 26, 1980, it had been replaced by a new hood (Ex.C-13, C-14; Tr. 39, 41-42, 58-60, 158-165, 284, 457).8.\u00a0 When first employed in blasting operationsat Keco in May 1980, Glenn Upshaw was not furnished a respirator.\u00a0 He began usingpaper masks of the type used by painters with the helmet and later furnished his ownrespirator.\u00a0 After the walkaround inspection by OSHA, the company supplied arespirator (Tr. 37-43, 64-65, 445-447).9.\u00a0 The abrasive-blasting operator complainedabout the condition of his face shield and temporary repairs were made, but hissupervisors were not responsive to his request for repair or replacement of protectiveequipment (Tr. 60, 61-63).10.\u00a0 On the date noise and dust samples weretaken, the operator was wearing a hood which did not supply its own air, designated asModel BH-5 manufactured by the Empire Blasting Company.\u00a0 It was not the type requiredfor abrasive-blasting operations described in regulations at 29 C.F.R. ? 1910.94 (Tr.147-148, 284, 303, 381, 385-386, 406).11.\u00a0 Abrasive-blasting respirators are commonlyavailable for sale (Ex. C-10, C-11, C-12; Tr. 149-152).12.\u00a0 The abrasive blasting was done in abuilding similar to a garage or carport with three sides and a roof.\u00a0 Two of thesides had windows.\u00a0 The front of the building was open but could be enclosed byunrolling a plastic sheet which was attached over the opening.\u00a0 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.\u00a0 The plastic sheeting used to cover theentrance to the sandblasting building was attached to the building above the opening withthe bottom end pulled up over the roof of the building.\u00a0 To lower or raise theplastic, it was necessary for two men to use ladders or some other means to reach theplastic and lower it over the enclosure, or lift up the plastic before removing the partwhich had been blasted.\u00a0 A common way to attain the height necessary to handle theplastic was for an employee to stand on the forks of an industrial truck and be lifted upto the height 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.\u00a0 A safety platform was available on the yardfor use with the industrial truck.\u00a0 Employees could stand in the platform which waspicked up by the industrial truck and be lifted to the desired height. \u00a0Instructionsfor use of the safety platform were posted on the forklift.\u00a0 The existence of theplatform was not known by employees and it was not used, however, until after the date ofthe inspection (Tr. 70-71, 80, 434-436).15.\u00a0 The foreman of the welding departmentusually participated in using the forklift to lift workers to the height necessary to movethe plastic sheeting (Tr. 44-45).16.\u00a0 James J. Sweeney, an industrial hygienistfor the Occupational Safety and Health Administration for four years, conducted thesamplings for noise and dust in the case.\u00a0 Mr. Sweeney obtained a bachelor’s degreein chemistry in 1975 and received additional training after being employed by OSHA.\u00a0He has passed the examination for industrial hygienists given by the American Boardof Industrial Hygiene Corps (Tr. 86-90).17.\u00a0 At an opening conference with officials ofthe company, Mr. Sweeney informed them that the complaint concerned the abrasive-blastingarea and requested that he be informed when usual or normal blasting activities would beperformed so monitoring for noise and dust could be done on that day. \u00a0 The companypresident specified a date and the monitoring was done on November 26, 1980, on employeeRichard Kraft.\u00a0 At the time the sampling was made, Kraft was wearing anon-air-supplied helmet and hood and cartridge-type respirator.\u00a0 He was also wearingearmuffs over a knit cap (Tr. 96-97, 100-101).18.\u00a0 Three dust samples were obtained. \u00a0Arespirable dust sample showed the concentration level of respirable dust inside theblasting hood worn by the employee.\u00a0 The total personal dust sample reflected theconcentration level of total dust just outside the blasting hood.\u00a0 The area totaldust sample recorded the concentration level of dust just outside the blasting enclosure(Tr. 98, 100).19.\u00a0 The eight-hour time weighted average forrespirable dust inside the hood was 7.74 mg\/M3 (Ex. C-1, C-4, C-5; Tr. 120-121, 135-136,287-289, 372).\u00a0 The eight-hour item weighted average for total dust from the sampletaken just outside the hood was 414 mg\/M3 (Ex. C-2, C-4, C-6; Tr. 121, 122).20.\u00a0 Limiting employee exposure to dust to twoand a half hours per day would probably be sufficient to comply with the permissibleexposure limits (Tr. 295, 421-424).21.\u00a0 The eight-hour time weighted average forarea dust taken by the sample outside the sandblasting building was 24 mg\/M3 (Ex. C-3,C-4, C-7; Tr. 121).22.\u00a0 The abrasive-blasting operator was exposedto dust levels in excess of those permitted by OSHA regulations (Ex. C-4; Tr. 401-402).23.\u00a0 Noise levels were monitored by twoinstruments, a DuPont audiodecimeter which gives a readout expressed in terms of apercentage of the permissible limit and a sound level meter which measures the noise levelwhich exists at any point in space and any moment in time (Tr. 136, 299-301).24.\u00a0 The DuPont audiodecimeter was placed on theemployee performing abrasive blasting with the microphone attached to clothing near hisear.\u00a0 The monitoring began shortly after 7:30 a.m. and continued until lunch. \u00a0It was resumed after lunch and remained until 1:11 p.m. when sandblasting was completedfor the day.\u00a0 Fight readings were made of the area near the employee at various timesduring the day (Ex. C-8; C-9; Tr. 138-139, 145-146).25.\u00a0 The readings of the decimeter show noiselevels 154% of permissible level (Ex. C-8, C-9; Tr. 145-146, 351).26.\u00a0 Respondent’s employee, Richard Kraft, wasexposed to noise levels in excess of those permitted by the OSHA regulations (Ex. C-8,C-9; Tr. 145-146, 353, 362, 394-396).\u00a0 Readings from the sound level meter show noiselevels ranging between 111 dba and 114 dba near the operator’s ear to between 87 dba and91 dba at 12 feet from the window (Ex. C-8, C-9; Tr. 146).27.\u00a0 Noise levels could be administrativelyreduced by limiting time any employee is engaged in abrasive-blasting operations. Rotationof operators would also reduce the exposure to respirable dust (Tr. 153-155, 197-198,350-353).28.\u00a0 The average noise exposure level was 97.3dba.\u00a0 An employee may be exposed to that level for 2.9 hours so long as he is exposedto noise levels below 90 dba during the remaining hours of his work day (Tr. 155-157,262-264).29.\u00a0 The noise level readings did not record thelevel of noise heard by the operator as they do not give effect to earmuffs worn by theoperator (Tr. 370).30.\u00a0 A person wearing a properly fitted earmuffwhich reduced the noise level by 21% or 26% would not hear noises in excess of 90 dba (Tr.274, 366-370, 378, 380).31.\u00a0 The operator was wearing a knitted cap overhis head and between his ears and the earmuffs which could prevent a tight seal around theears (Tr. 264, 275, 399-401). 32.\u00a0 After specific and repeated requests, respondent refused to permit, OSHAcompliance officers to inspect required forms OSHA 200, which are records of injuries andillness, for the years 1976 through 1980.\u00a0 It is the policy of OSHA to review suchrecords for the five years preceding the inspection (Tr. 172-175, 188-196).33.\u00a0 Respondent refused to produce the recordson the grounds they were in storage and it would be expensive to retrieve them. Thecompany offered to consider the request if it was put in writing and reasons given for therequest (Tr. 203-204, 281).34.\u00a0 Keco was issued a citation on August 28,1979, for an \”other than serious\” violation of 29 C.F.R. ? 1904.7 for failingto make forms OSHA 100, 101 and 102 available for inspection or copying at the time of theinspection.\u00a0 There was no notice of contest filed as to that item and it became afinal order of the Commission (Ex. C-15, C-16; Tr. 175-178, 196).35.\u00a0 In support of their continuing efforts toobtain copies of records of injuries and illnesses, respondent was furnished copies ofpublications and regulations setting forth the requirements for keeping and producingrecords (Ex. C-17, C-18; Tr. 182-183, 196-197).36.\u00a0 Industrial Hygienist Messinger, whoparticipated in the instant inspection, had been provided with the records for 1978 andpossibly 1979 during an inspection in 1979 (Tr. 211-215, 316-317, 319, 327-328).37.\u00a0 The focus of the inspection in the currentinspection, i.e., the abrasive blasting area, was a different emphasis fromprevious inspections (Tr. 243, 246).38.\u00a0 Keco maintains a record of\”recordable\” injuries and also maintains a book entitled \”NonrecordableInjuries\” in which injuries are logged which are not considered to be recordableinjuries (Tr. 309).39.\u00a0 The determination whether an injury is logged in the book of non-recordableinjuries or is placed in the recorded injuries is based on several factors including theinformation required by form C-3 which is a medical report to the Ohio IndustrialCommission (Tr. 310-313, 320-325).40.\u00a0 The determination of whether an injury wasrecordable was based upon an initial evaluation of the injury and was not changed afterthe full medical report was received, which was sometimes several weeks after the event(Tr. 313-315, 325, 329-330).41.\u00a0 Injuries to R. Bedinghous, Dominic Sweeney,Jeff Broz and Andrew Brock were considered by OSHA to have been logged incorrectly asnon-recordable injuries (Tr. 209, 313, 315, 325).42.\u00a0 Mr. N. J. Corbo, an experienced mechanicalengineer, testified as an expert witness on behalf of respondent (Tr. 333-336, 339-347).43.\u00a0 It was Mr. Corbo’s opinion thatrespondent’s sandblasting facility was not a \”closed blasting cleaning room\”within the meaning of the \”General Industry Standards\” published by OSHA. \u00a0He based his opinion on 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.\u00a0 The noise level readings contained inexhibits C-8 and C-9 were confirmed by tests Mr. Corbo made shortly before the hearingusing a general radio octave band analyzer (Ex. R-5; Tr. 354-358).45.\u00a0 Mr. Corbo was of the opinion that therespirator used at Keco provided adequate protection from respirable dust for a limitedperiod of time up to 2 hours and 57.3 minutes (Tr. 374-375, 414-415).46.\u00a0 The record contains no evidence to supportrespondent’s allegations of harassment or improper conduct by the complainant or hisagents in this case (Tr. 463-474).47.\u00a0 Respondent’s facility was a blast-cleaning room within the meaning of 29 C.F.R.? 1910.94(a)(1)(iv).48.\u00a0 At the time of the inspection, respondentdid not have written standard operating procedures in effect governing the selection anduse of respirators (Tr. 166).49.\u00a0 Although the respirator was seen lying inthe blasting room, respondent had a proper storage locker inside the boiler room.50.\u00a0 Proper training, fitting, and testing ofthe respirator were not accomplished.51.\u00a0 Earmuffs worn by the operator effectivelyreduced the noise level heard by the operator to below 90 dba (Tr. 367-368).IIIDISCUSSIONA.\u00a0 Serious Citation 1, Item 1(a), alleges aviolation of 29 C.F.R. ? 1910.95(b)(1) on the grounds that the noise levels exceededthose shown in Table G-16 of subpart G and feasible administrative and engineeringcontrols were not utilized to reduce the sound levels.\u00a0 Respondent contends thatemployees did not spend more than two and a half hours of any shift in sandblastingoperations and, therefore, the sound levels recorded by the compliance officers did notshow a violation of the regulations.\u00a0 Respondent further contends the earmuffs wornby employees reduced 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-blastingoperator was exposed to noise far in excess of the maximum.\u00a0 On the day the samplingwas made, the noise readings were taken from 7:43 a.m. to 10:50 a.m. before lunch and from11:48 a.m. to 1:11 p.m. after lunch.\u00a0 During the 280 minutes (4 hours, 40 minutes)the sample was taken, the noise level above 90 dba was 154% of that allowed for a fulleight-hour day (Ex. C-8, C-9; Tr. 145-416).\u00a0 Respondent’s contention that operatorsdid not engage in abrasive blasting for longer than two and a half hours on any day isdirectly refuted by the documentation of the noise sample and the testimony of ComplianceOfficer Sweeney.\u00a0 In any event, it is clear that noise conditions were of a level toexceed the maximum allowed for a full eight-hour shift. \u00a0 Protective earmuffs worn byoperators would reduce the level of noise reaching their ears up to 25 dba (Tr.367-368).\u00a0 That the earmuffs may have reduced the sound level reaching the employees’ears below 90 dba does not, however, accomplish compliance with the regulations becausethe Review Commission has ruled that personal protective equipment (earmuffs) can be usedto control noise only if it cannot be done by means of feasible engineering andadministrative controls. Turner Co., 76 OSHARC 108\/A2, 5 BNA OSHC 1790, 1976-77 CCHOSHD ? 21,023 (No. 3635, 1976).\u00a0 [Reversed and remanded on issue of economicfeasibility, 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. \u00a0It requires that engineering or administrative controls first be used to reduce noiselevels to the extent that controls are feasible under the circumstances. \u00a0 Personalprotective equipment must then be used to supplement the engineering and administrativecontrols if the use of such controls do not reduce noise levels to the prescribed limits.The excessive noise levels could be abated by meansof administrative controls.\u00a0 The average noise level of 97.3 dba is permissible for2.9 hours.\u00a0 If respondent had, in fact, restricted its abrasive-blasting operationsto not more than two and a half hours in any day, the sound level would not have beenexceeded (Tr. 438–440, Resp. brief p. 2).\u00a0 The testimony of Manager Cicchianiindicated such scheduling to be practicable.The evidence does not show conditions which wouldlikely result in death or serious bodily injury.\u00a0 Under such circumstances,modification of the citation to \”other than serious\” is appropriate.B.\u00a0 Serious Citation 1, Item 2, charges that an industrial truck was used to liftpersonnel without a safety platform in violation of 29 C.F.R. ? 1910.178(m)(12)(i).The compliance officers observed an employee standingon the forks of an industrial truck and being raised up to a height of about seven feetwhich permitted him to remove the plastic tarp which covered one end of theabrasive-blasting building (Tr. 168-169). An employee confirmed that the tarp was oftenmoved by an employee standing on the truck (Tr. 68-69).\u00a0 The testimony is consistentand believable.Respondent contends the worker who testified was adissident and hostile employee, but no reason is given to disbelieve his testimony (Resp.brief p. 4).\u00a0 Respondent claims there was a safety platform on the yard, but theevidence indicates that its existence and use was not known to employees until after theinspection (Tr. 71, 80).A fall of up to seven feet to the hardened surfacefrom the forks of an industrial truck could result in serious injury, but a fall from thatheight is unlikely to have so severe a result.\u00a0 An \”other than serious\”violation is established.C.\u00a0 Willful Citation 2, Item 1, alleges thatOSHA form 200 and predecessor forms 100 and 102 for the years 1976 through 1979 were notmade available for inspection and copying.The regulation states that, \”Each employer shallprovide, upon request, records … for inspection and copying by any representative or theSecretary of\u00a0 Labor for the purpose of carrying out the provisions of theAct….\” 29 C.F.R. ? 1904.7.Section 1904.2 requires that a log and summary of allrecordable occupational injuries and illnesses be kept.\u00a0 The compliance officers madeseveral clear requests for the records, but the requests were rebuffed. \u00a0 Respondentrefused to produce the records without a written request and an explanation as to why theywere needed.\u00a0 Records for 1976 and into 1979 had been examined during a previousinspection and were in storage (Tr. 280-281).\u00a0 Respondent contends it did not refuseto provide the records but \”…simply prescribed a reasonable and businesslikecondition\” (Resp. brief pp. 5-6).\u00a0 Complainant asserts a review of the recordswas necessary to see if there had been injuries or illnesses associated with theabrasive-blasting operations or if amendments had been made on the records (Tr. 212,242-244, 246).As it was entitled to do, respondent had requiredthat the Secretary obtain a warrant before conducting the inspection (Tr. 94-95). Afterhaving lost its motion to quash the warrant, respondent was not entitled to prescribe theconditions under which the inspection could be conducted so long as it complied with theAct and the conditions of the warrant.\u00a0 Respondent was not entitled to impose what itconsidered to be \”a businesslike condition.\”\u00a0 It certainly could ask thatits needs be considered but could not refuse the request for records which are required tobe kept and produced for inspection and copying.Complainant alleges the refusal constituted a willfulviolation which has been defined as conduct committed \”with either an intentionaldisregard of or plain indifference to the Act’s requirements.\”\u00a0 Mel JarvisConstruction Co., 81 OSHARC 89\/B13, 10 BNA OSHC 1052, 1981 CCH OSHD ? 25,713 (No.77-2100, 1981).\u00a0 The record fully supports complainant’s description of the violationas willful.\u00a0 Several direct and unequivocal requests for the records were made andcopies of the standards and the OSHA handbook on recordkeeping were furnished Keco (Ex.C-17, C-18; Tr. 180-192).\u00a0 The continued refusal to produce the records was anintentional disregard of the requirements of the regulations and was a willful violationof the Act.D.\u00a0 Willful Citation 2, Item 2, was amended tocharge a violation of 29 C.F.R. ? 1910.94(a)(5)(ii)(a) and (c) because of a failure toprovide an abrasive-blasting respirator in the following respects:An abrasive blasting respirator was not being worn byall abrasive blasting operators exposed to dusts in excess of the limits set in 1910.1000while performing abrasive blasting in an abrasive blasting room:On November 26, 1980, an abrasive blasting respirator(i.e., a continuous flow airline respirator constructed so that it will cover the wearer’shead, neck and shoulders, was not being worn by the abrasive blasting operator who wasexposed to excessive levels of dust as described below:The abrasive blasting operator was exposed to anairborne respirable dust level of 7.74 mg\/M3 of air on an 8-hour time weighted averagebasis inside the hood which he was wearing.\u00a0 This level exceeds the OSHA standard of5.00 mg\/M3 for respirable dust. This operator worked in a totally enclosed abrasiveblasting enclosure.The sections cited require that an abrasive-blastingrespirator be worn by operators when working inside a blast-cleaning room or whereconcentrations of toxic dust dispersed by the abrasive blasting may exceed the limits setin ? 1910.1000 and the nozzle and blast are not physically separated from the operationin an exhaust-ventilated enclosure.\u00a0 Respondent did not furnish an abrasive-blastingrespirator which is defined as a continuos flow air-line respirator constructed so that itwill cover the wearer’s head, neck and shoulders.\u00a0 ? 1910.94(a)(ii).\u00a0 Clearly,the respirator used at Keco’s facility was not a continuous flow air-line respirator as itdid not have any air supply.The failure to provide a respirator is a violation if other circumstances described in theregulations are met.\u00a0 Respondent contends that respondent’s abrasive-blastingbuilding is an open, outside facility and is not a blast-cleaning enclosure (Tr. 383,419-420). Respondent also contends the Secretary erroneously assumed that blasting wasperformed eight hours a day and employees were exposed for that period of time (Resp.brief pp. 6-7).Actually, the Secretary does not contend thatblasting operations were conducted eight hours a day, but the evidence does establish adust level so high that it substantially exceeds the maximum permitted for an eight-hourtime weighted average.The abrasive-blasting respirator is required undereither of three conditions, two of which the Secretary claims are met in this case. First,when the operator is working inside of blast-cleaning rooms, or secondly, where the dustlevels exceed those specified in ? 1910.1000 and the nozzle and blast are not separatedin an exhaust-ventilated enclosure.Respondent’s abrasive-blasting operations areperformed in a building similar to an automobile garage with an opening about the size ofa garage door (Ex. R-2, R-3).\u00a0 The entry wall can be enclosed by a sheet of plasticwhich is attached above the opening.\u00a0 The plastic is placed over the opening whenblasting is being done.\u00a0 Respondent contends is not a blast-cleaning room and Mr.Nicholas J. Corbo, its expert witness so testified.\u00a0 He based his conclusion on thedefinition in ? 1910.94 that a forced-draft air system would be required forblast-cleaning room (Tr. 383, 419-420).\u00a0 Mr. Corbo’s description of a blast-cleaningroom is not supported by ? 1910.94(a)(1)(iv) which defines it as follows:A complete enclosure in which blasting operations areperformed and where the operator works inside of the room to operate the blasting nozzleand direct the flow of the abrasive material.The record shows that abrasive blasting at Keco is performed in such a facility.In addition, the circumstances of ?1910.94(a)(5)(ii)(c) are also met.\u00a0 Samples of dust taken on and about theabrasive-blasting operator showed he was exposed to dust levels higher than thosepermitted by 29 C.F.R. ? 1910.1000.\u00a0 The calculations of dust concentrations show alevel inside the hood of 7.74 mg\/M3 time weighted average for eight hours (Ex. C-1–C-5).\u00a0 Respondent does not dispute the dust level (Tr. 401-402).\u00a0 There is noexhaust-ventilated enclosure which physically separates the operator from the blast.\u00a0 Neither is respondent’s activity the short, intermittent or occasional activity forwhich a dust respirator may be worn.\u00a0 ? 1910.94(a)(5)(iii).\u00a0 Noncompliance hasbeen established.The evidence does not show a willful violation and asrespondent did not consent to try the issue as a serious violation, the item will beaffirmed as other than serious.E.\u00a0 Other Citation 3, Item 1, charges thatrespondent failed to properly record two injuries in 1980 as required by OSHA form 200 and29 C.F.R. ? 1904.2(a).By referring to a log of injuries complainantdiscovered two injuries which should have been recorded in accordance with instructions onOSHA form 200.\u00a0 Respondent’s personnel manager consciously attempts to accuratelyrecord the injuries, but because of oversight or incomplete information available to herfailed to properly record an injury to an employee requiring sutures and one involvingsecond degree burns on the left thumb of another employee.F.\u00a0 Other Citation 3, Item 2, alleges thatprotective equipment was not maintained in a sanitary and reliable condition on November18, 1980, as required by 29 C.F.R. ? 1910.132(a).\u00a0 The hood worn by the operator hadtorn places which would permit increased amounts of dust under the hood and lessen theprotection afforded by it (Ex. C-14).G.\u00a0 Other Citation 3, Item 3(a), charges thatemployees were exposed to materials in excess of the eight-hour time weighted average inviolation of 29 C.F.R. ? 1910.1000(c).\u00a0 As previously discussed, theabrasive-blasting operator was exposed to 7.74 milligrams of dust per cubic meter of airalthough the maximum permissible exposure level for inert or nuisance dust is 5 mg\/M3 onan eight-hour time weighted average.H.\u00a0 Other Citation 3, Item 3(c), alleges aviolation 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.\u00a0 Respondent doesnot claim to have had written instructions (Tr. 166).I.\u00a0 Other Citation 3, Item 3(d), contendsrespondent violated 29 C.F.R. ? 1910.134(b)(6) which requires that, \”[r]espiratorsshall be stored in a convenient, clean and sanitary location.\”\u00a0 During thewalkaround inspection, the compliance officer observed that the respirator was left on thepiece being blasted shortly after abrasive blasting had been done and while dust was stillhanging in the air. The compliance officer did not see any storage area (Tr. 166-167).\u00a0 There is no indication the compliance officer asked about a storage area.Mr. Cicchiani, respondent’s plant manager, testifieda locker was provided for storage of the respirator which was located in the boiler roomand about 15 to 20 feet from the abrasive-blasting area (Tr. 448-449). \u00a0 The evidencedoes not support complainant’s allegation and it will be vacated. J.\u00a0 Other Citation 3, Item 3(e), charges respondent with a violation of 29 C.F.R. ?1910.134(e)(5) which states as follows:For safe use of any respirator, it is essential thatthe user be properly instructed in its selection, use, and maintenance.\u00a0 Bothsupervisors and workers shall be so instructed by competent persons.\u00a0 Training shallprovide the men an opportunity to handle the respirator, have it fitted properly, test itsface-piece-to-face seal, wear it in normal air for a long familiarity period, and,finally, to wear it in a test atmosphere.The Government contends that training was not provided including giving employees anopportunity to handle the respirator, have it properly fitted and worn in familiarity andtest periods.\u00a0 Respondent asserts it furnished respirators and filters and neverreported any injuries or accidents (Tr. 448).It is clear respondent did not train or fit employeesin connection with the use of respirators (Tr. 42-43, 167-168).IVPENALTIES Section 17(j) provides for the Review Commission toassess penalties as provided in the Act.\u00a0 In determining the amount of penalty,consideration must be given to the gravity of the violation and the good faith, size andhistory of previous violations by the employer.Respondent had between 220 and 250 employees and hadbeen investigated previously although two of the prior citations had been dismissed.\u00a0 The evidence showed few signs that, prior to the inspection, respondent had soughtto comply with the safety standards. The operator had to obtain his own mask and theblasting hood was in poor condition.\u00a0 There were no written safety standards and thesupervision was lax.A civil penalty of not more than $10,000 is provided for each willful violation undersection 17(a) of the Act.\u00a0 Respondent willfully failed to produce records of injuriesand illnesses, but the noncompliance did not constitute a direct threat of injury to theemployees.\u00a0 Under such conditions, a penalty of $200 is appropriate for willfulcitation two, item one. Although cited as serious violations, the followingviolations are reclassified to other than serious and with the designated penalties:Citation 1, Item 1(a) 29 C.F.R. ? 1910.95(b)(1)\u00a0 excessive noise levels $250Citation 1, Item 2\u00a0 29 C.F.R. ? 1910.178(m)(12)(i) the use of industrial truck as araised platform $100Willful citation two, item two, which charges that the abrasive-blasting room was notequipped 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.\u00a0 A penalty of $250 is appropriate.Penalties were not proposed for other violations andnone are assessed.VABATEMENTAll items other than purchase of a properabrasive-blasting respirator have been abated or can be abated within a short period oftime.\u00a0 Administrative control of excessive noise and dust can be accomplished byrescheduling hours of work or rotating exposed employees.\u00a0 Therefore, all abatementof all violations other than citation two, item two, shall be completed within 15 daysfollowing the date of the final order, and abatement of the cited violation shall beeffected within 45 days of the date of the final order.CONCLUSIONS OF LAW1.\u00a0 The Review Commission has jurisdiction overthe parties and the subject matter.2.\u00a0 Respondent failed to comply with 29 C.F.R.? 1904.7 under conditions which constituted a willful violation of the Act. \u00a0 Apenalty of $200 is appropriate. 3.\u00a0 Respondent failed to comply with thefollowing regulations under conditions which constituted other than serious violations ofthe Act, with appropriate penalties set opposite thereto: a. 29 C.F.R. ? 1910.95(b)(1) $250 b. 29 C.F.R. ? 1910.178(m)(12)(i) $100 c. 29 C.F.R. ? 1910.94(a)(5)(ii)(a) and (c) $250 d. 29 C.F.R. ? 1904.2(a) 0 e. 29 C.F.R. ? 1910.132(a) 0 f. 29 C. F. R. ? 1910.1000(c) 0 g. 29 C. F. R. ? 1910.134(b)(1) 0 h. 29 C.F.R. ? 1910.134(e)(5) 0 ORDER 1.\u00a0 It is ordered as follows:Serious Citation 1a.\u00a0 Item 1(a) is reclassified to other than serious and is affirmed.b.\u00a0 Item 1(b) is vacated by agreement.c.\u00a0 Item 2 is reclassified to other than serious and affirmed.Willful Citation 2a.\u00a0 Item 1 is affirmed.b.\u00a0 Item 2 is reclassified to other than serious and is affirmed.Other Citation 3a.\u00a0 Item 1 is affirmed.b.\u00a0 Item 2 is affirmed.c.\u00a0 Item 3(a) is affirmed.d.\u00a0 Item 3(b) is vacated.e.\u00a0 Item 3(c) is affirmed.f.\u00a0 Item 3(d) is vacated.g.\u00a0 Item 3(e) is affirmed.2.\u00a0 Penalties of $800 are assessed. Dated this 6th day of May, 1982.JOE D. SPARKS Judge FOOTNOTES: [[1]] Abrasive blasting is similar to sandblasting,except that a metallic grit is used as the blasting agent instead of sand. \u00a0 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 thedirections for review.\u00a0 However, the parties subsequently entered into a partialsettlement agreement amicably disposing of that item.\u00a0 The Commission has alreadyentered an order granting this partial settlement.[[3]] The first chassis was removed from the facilityand replaced by the second at approximately 1:00 p.m., following the lunch break. \u00a0The alleged violation discussed in the last part of this decision, involving the use ofthe forks of the forklift to elevate operator Kraft, occurred at that time.[[4]] Table Z-3 of 29 C.F.R. ? 1910.1000 establishesthe following limits 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 there are at least four types of \”blast-cleaning enclosures\” withinthe meaning of ? 1910.94(a)(3)(i)–\”blast cleaning barrels,\” \”blastcleaning rooms,\” \”blasting cabinets,\” and \”rotary blast cleaningtables.\”\u00a0 See ?? 1910.94(a)(1)(iii), (iv), (v) & (xi).\u00a0 This isconsistent with paragraph 4.1 of ANSI Z9.4-1968, American National Standard Ventilationand Safe Practices of Abrasive Blasting Operations, which states:Blast Cleaning Enclosures.\u00a0 These includerotary blast cleaning tables, blast cleaning barrels and drums, abrasive blastingcabinets, blast cleaning rooms, abrasive separators, and similar enclosures.ANSI Z9.4-1968 was the source of 29 C.F.R. ?1910.94(a).\u00a0 See ? 1910.99.\u00a0 It is therefore appropriate to refer to the ANSIstandard in interpreting the OSHA standard.\u00a0 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 general categoryof \”blast-cleaning enclosures.\”[[6]] Mr. Upshaw had performed abrasive blastingoperations for Keco as recently as a month before the hearing.\u00a0 He testified to theeffect that abrasive blasting was performed on an irregular basis.\u00a0 At times, hewould engage in blasting more or less continuously for a full week.\u00a0 On some days,more than one chassis would be brought to the facility for blasting.\u00a0 In addition, heblasted other smaller objects, including wheel rims, small air conditioners and othersmall parts.\u00a0 It was therefore not unusual, in his experience, to spend an entireeight-hour work shift engaged in abrasive blasting operations.At the time of the hearing, Mr. Upshaw was notworking for Keco because of his refusal to cross a picket line in a labor-managementdispute.\u00a0 Keco accordingly suggested to the judge that the witness was biased orantagonistic toward Keco.\u00a0 In connection with another item also on review (citation1, 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 no reason isgiven to disbelieve his testimony….[[7]] A set of abrasive blasting instructions issuedby Keco included the following instruction:Sandblast operator will not perform actual blastingfor more than 2 1\/2 hours accumulated time in any one 8-hour period.The evidence indicates, however, that these instructions were prepared in response to theinstant OSHA inspection and issued sometime after the alleged violation.\u00a0 There is noevidence that similar instructions were issued orally or in writing as prior to the dateof the alleged violation.[[8]] Indeed, the record establishes that the typerespirator permitted by this exception–a particulate filter respirator, commonly referredto as a dust-filter respirator–lacks the capacity to adequately protect Keco’s abrasiveblasting operators.\u00a0 This was particularly true on the day of the citedviolation.\u00a0 Keco’s expert witness testified that, at the dust levels measured on thatdate, the dust-filter respirator worn by Mr. Kraft would have adequately protected him forslightly less three hours.\u00a0 The witness’s opinion that the operator was adequatelyprotected was based on his assumption that the operator was exposed for no more than twoand one-half hours.\u00a0 However, Mr. Kraft was in fact exposed for four hours and fortyminutes.[[9]] We are, of course, aware that lead dust is\”toxic\” in some concentrations.\u00a0 It is questionable, however, whether leaddust is covered by ? 1910.94(a)(5)(ii)(c) since the exposure limits for lead arenot \”limits set in ? 1910.1000\” but rather are limits established by ?1910.1025.\u00a0 In any event, this record provides no basis for concluding that thepresence of \”some\” lead in the abrasive blasting dust rendered that dust\”toxic.\”[[10]] According to the Secretary’s evidence, the\”total dust\” level in the room was 414 mg\/M3 on an eight-hour, time weightedaverage basis.\u00a0 Yet, the respirable dust level inside the blasting hood was only 7.74mg\/M3.\u00a0 It is therefore obvious that most of the dust was kept out of the operator’sbreathing zone by the blasting hood.\u00a0 The dust-filter respirator worn by the operatorunderneath the blasting hood presumably would have further reduced the amount of dustactually breathed by the operator.[[11]] It is undisputed that the welding departmentwas responsible for transporting the chassis, by forklift, between the production area andthe abrasive blasting facility.\u00a0 Plant manager Cicchiani testified that both welderforemen and welders were involved in transporting the chassis and setting them up forblasting.\u00a0 According to blasting operator Glenn Upshaw, it was these same weldingdepartment employees, including the supervisors, who operated the forklift when it wasused to lift the blasting operators to the roof of the abrasive blasting facility.[[12]] According to Mr. Upshaw, the ladder methodinvolved the cooperative effort of two employees standing on separate ladders at oppositeends of the plastic tarpaulin.\u00a0 It is not clear whether a single employee standing ona sawhorse could fold back the tarpaulin or whether this method also required twoemployees.”