“Docket No. 79-6392 79-3813 80-1602 79-5062 SECRETARY OF LABOR, Complainant, v.RSR CORPORATION, Respondent.OSHRC Docket No. 79-6392SECRETARY OF LABOR Complainant, v.RSR CORPORATION, Respondent.UNITED STEELWORKERS OF AMERICA, AFL-CIO, and LOCAL UNION 3721,Authorized Employee Representative.OSHRC Docket Nos. 79-3813 and 80-1602SECRETARY OF LABOR, Complainant, v.RSR QUEMETCO, a Division of RSR Corporation, a corporation, Respondent.UNITED STEELWORKERS OF AMERICA, AFL-CIO, and LOCAL UNION 5554-J, Authorized EmployeeRepresentative.OSHRC Docket No. 79-5062DECISIONBefore:\u00a0 ROWLAND, Chairman; CLEARY and COTTINE, Commissioners. BY THE COMMISSION:Decisions of Administrative Law Judges Seymour Fier (Docket No. 79-6392), DeeC. Blythe (Docket Nos. 79-3813 and 80-1602), and F. Daley Abels (Docket No. 79-5062) arebefore the Commission for review pursuant to section 12(j), 29 U.S.C. ? 661(i), of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 Commissioner Cottine granted the parties’ petitions for review of the judges’decisions, which were each based on stipulated records without hearings.\u00a0 The caseshave been consolidated for review and present issues arising under the standard at 29C.F.R. ? 1910.1025 (\”the lead standard\”), specifically issues relating to thetemporary removal of employees from lead-exposed jobs, terminations of employment basedupon medical determinations relating to lead exposure, and the payment of medical removalprotection (\”MRP\”) benefits to employees so removed or terminated.\u00a0 Thelead standard’s MRP provision was \”[o]ne of the most vigorously contestedissues\” before the federal appellate court that ultimately upheld its procedural andsubstantive validity.\u00a0 United Steelworkers of America v. Marshall, 647 F.2d 1189,1228 (D.C. Cir. 1980) (\”Steelworkers\”), cert. denied sub nom.\u00a0 LeadIndustries Association, Inc. v. Marshall, 453 U.S. 913 (1981).\u00a0 See infra note3.\u00a0 Employee access to lead-exposure monitoring data is an additional issue beforethe Commission.\u00a0 The cases also present issues involving willfulness and access tooccupational injury and illness records.I\u00a0 Docket No. 79-6392ARespondent, RSR Corporation (\”RSR\”), is engaged in secondary lead refining,involving the recycling of lead from discarded batteries and other waste materials. During September 1979, an Occupational Safety and Health Administration(\”OSHA\”) compliance officer conducted an inspection of RSR’s plant in Wallkill,New York.\u00a0 As a result of this inspection, the Secretary of Labor (\”theSecretary\”) issued a citation to RSR on November 1, 1979, alleging a willfulviolation of the Act for failure to comply with the standard at 29 C.F.R. ?1910.1025(k)(2)(i).[[1\/]]\u00a0 The citation alleged that on or about September 5-27,1979, RSR did not provide up to 18 months of MRP benefits on each occasion that anemployee was removed from exposure to lead or otherwise limited in employment activitypursuant to the cited standard.\u00a0 The Secretary proposed a $1,000 penalty.The citation arose from OSHA’s investigation of the removal and subsequentemployment termination of one of RSR’s employees, Lester King, who had worked in thebattery wrecking department as an acid plant operator.\u00a0 Even prior to the March 1,1979 effective date of the lead standard, it had been RSR’s practice to remove employeesfrom a lead-contaminated environment upon the recommendation of its physicians.\u00a0 Kinghad been temporarily removed on five previous occasions, beginning in November 1973, forperiods ranging from 1 to 2-1\/2 months.\u00a0 On February 1, 1979, King was againremoved.[[2\/]]\u00a0 The determination to remove King was based on the recommendation ofRSR’s physicians due to the results of a blood test indicating that King had a blood leadlevel of 72 ug\/100g, although he was asymptomatic (that is, presenting no symptoms of leaddisease).On April 12, 1979, RSR Vice-President John A. DePaul issued a corporate policy memorandumon the subject of medical removal protection benefits for employees who are removed fromthe worksite.\u00a0 In pertinent part, the memo stated:RSR Corporation, after reviewing extensively the regulations issued by the Secretary ofLabor relating to employee exposure to lead, and after consultation with counsel, believesthat those portions of the regulations requiring a continuation of earnings to employeeswho have been removed from the work place is arbitrary, capricious, and beyond theauthority of the Secretary of Labor under the Occupational Safety and Health Act of 1970.\u00a0 RSR Corporation has instructed its counsel to file the appropriate papers beforethe appropriate Federal Court to contest fully the legality of the Secretary’s actions inthis regard.\u00a0 In the interim, RSR Corporation, if the situation presents itself, willset aside and deposit with a federally insured financial institution, appropriate sums ofmoney to cover any potential liability that may accrue if the OSHA Standard is found to bea valid exercise of the Secretary’s power.\u00a0 This account will be specificallydesignated and segregated from any other accounts which RSR may have.\u00a0 All interestwhich may accrue will inure to the benefit of those affected employees. For those employees who are requested to be removed from the work place under applicablefederal law, RSR will assist those employees in processing appropriate Worker’sCompensation claims.\u00a0 For those employees that are required to be removed, RSR willcontinue to maintain their seniority positions on appropriate employee rosters.With respect to the remaining provisions of the OSHA Standard, RSR intends to comply withboth the spirit and the letter of the law.The stipulated record also establishes the following:On May 22, 1979, Respondent acted upon the medical recommendation of itsphysician, Dr. Robert Kirschner, and terminated the employment of Mr. King.\u00a0 In aletter to Respondent dated May 24, 1979 . . . , Dr. Kirschner detailed the medical reasonswhy Mr. King should not work in an environment containing significant lead concentrations.Specifically, Dr. Kirschner indicated that his examination of Mr. King revealed adecreased ability to excrete lead.\u00a0 Dr. Kirschner has also stated that Mr. King’spropensity to absorb or retain lead concentrations and his inability to excrete lead fromhis system significantly exceeded these \”functions\” of other employees similarlyexposed to lead.\u00a0 Dr. Kirschner has concluded that a major contributory factor in Mr.King’s aberrant lead retention characteristic is his poor personal hygiene.\u00a0 On thebasis of the foregoing, Dr. Kirschner concluded that, while King presently exhibited nosigns of lead toxicity, further exposure to lead particulates could prove harmful to him.\u00a0 However, the stipulation further stated that the Secretary does not accept thevalidity of RSR’s medical determination.The parties take conflicting positions on whether King’s right to receive MRPbenefits ended when his employment was terminated. See supra note 2.\u00a0 However, intheir stipulation, the Secretary and RSR agreed that, if the MRP benefits provision of thelead standard then under judicial review were \”ultimately upheld,\” Lester Kingwould be entitled to the money which had been \”escrowed\” on his behalf for theperiod from March 1, 1979 (the effective date of the lead standard) through May 22, 1979(the date on which King was terminated from employment).[[3\/]]\u00a0 They further agreednot to address the issue of the validity of the lead standard before the ReviewCommission, on the ground that exclusive jurisdiction to make that determination residedwith the U.S. Court of Appeals in Steelworkers and, if appropriate, the Supreme Court.Based on the parties’ stipulation of facts and their briefs, Judge SeymourFier concluded that RSR did not willfully violate section 1910.1025(k) (2)(i) either prioror subsequent to May 22, 1979.\u00a0 Accordingly, he vacated the citation.\u00a0 Withrespect to the period of King’s temporary removal prior to May 22, the judge found thatRSR’s good faith efforts in maintaining a separate escrow fund and its \”clearwillingness\” to comply with the standard upon the imminent resolution of its legalityby the D.C. Circuit negated any possible characterization of the violation as willful.\u00a0 Nevertheless, Judge Fier found that RSR had conceded King’s right to receive MRPbenefits if the standard were upheld and that, in view of the D.C. Circuit’s decision inSteelworkers, \”there is no further issue between the parties as to Mr. King’s rightto receive the separate escrow fund benefits set aside on his behalf.\”\u00a0 Despitethe fact that he vacated the citation, Judge Fier also ordered that the funds which hadbeen \”escrowed\” on King’s behalf during the period of his March 1-May 22temporary removal be paid to King, with interest.With respect to the period subsequent to King’s May 22 termination, when MRPbenefits were neither paid to King nor \”escrowed,\” Judge Fier found that theSecretary had the burden of proving that King was still on temporary removal status afterthat date and, thus, that he was still entitled to MRP benefits.\u00a0 The Secretary hadargued two theories of his case.\u00a0 The Secretary noted that an employee’s MRP benefitscan only be terminated pursuant to a \”final medical determination,\” which isdefined as \”. . . the outcome of the multiple physician review mechanism or alternatemedical determination mechanism. . . .\”[[4\/]] The Secretary argued that theunilateral determination by RSR’s physicians to terminate King was not a \”finalmedical determination\” within the definition of that term.\u00a0 The Secretary alsoargued that a \”final medical determination\” that an employee cannot be returnedsafely to work based upon the employee’s elevated blood lead levels and diminished abilityto excrete lead can be made only after the employee has been removed for 18 months,thereby allowing the physicians to make a reliable determination concerning the employee’sability to excrete lead.\u00a0 Here, the Secretary charged, King was terminated eventhough none of his previous removals had exceeded three months.\u00a0 Judge Fier rejectedboth theories.Judge Fier took official notice of the fact that the multiple physicianreview mechanism had been stayed.\u00a0 He acknowledged that the alternate physiciandetermination mechanism had not been stayed.\u00a0 Nevertheless, the judge found nothingin the standard which would preclude a \”final medical determination\” basedsolely on the determination of a single physician, nor any reason to conclude that RSR’sphysicians were less objective than any other physicians.\u00a0 In Judge Fier’s view, whenRSR terminated King on May 22, 1979, the action was based on a bona fide effort to complywith subparagraphs (k)(1)(ii)(c)[[5\/]] and (k) (2) (vi) (C).[[6\/]]Judge Fier also rejected the Secretary’s argument that the termination of King waspremature under the standard.\u00a0 The judge pointed out that the preamble to thestandard does not specifically preclude the possibility that a \”final medicaldetermination\” that an employee cannot be returned safely to work in a leadenvironment might be rendered prior to the end of an 18-month removal period.\u00a0 Heacknowledged the parties’ stipulation that King showed no evidence of clinicalintoxication from lead exposure at the time of his termination.\u00a0 He also noted thatKing’s blood lead level \”dropped significantly\” during his removal — from 72ug\/100g to 49-51 ug\/100g.\u00a0 Nonetheless, the judge maintained that King’s ability tosustain exposure to lead must be judged at the time RSR’s doctors actually examined him.\u00a0The judge concluded that RSR’s physicians made a valid final medical determinationon May 22, 1979 that, based on King’s past medical history, King had a detected medicalcondition which placed him at increased risk of material impairment to health fromexposure to lead and was unable to return to RSR’s workplace.\u00a0 Thus, the judge ruledthat King was not entitled to MRP benefits after May 22, 1979, when his employment wasterminated.Commissioner Cottine granted the Secretary’s petition for review, over RSR’s opposition,and specifically directed review on the following issues: 1.\u00a0 Whether the judge erred in concluding that the Respondent did not violate themedical removal protection benefits provision at 29 C.F.R. ? 1910.1025(k)(2)(i) because avalid \”final medical determination\” regarding employee termination had beenmade.2.\u00a0 Whether the judge erred in concluding that the Respondent was not inwillful violation of 29 C.F.R. ? 1910.1025(k)(2)(i) during the period from March 1, 1979to May 22, 1979, because the Respondent had, by establishing an escrow account,\”acted within its legal rights by refusing to comport fully with the requirements ofa regulation which is the subject of pending judicial review.\”BThis is the Commission’s first case interpreting the substantive provisions of the leadstandard.\u00a0 Initially, we must determine whether RSR violated the Act by segregatingmoney in an account in lieu of providing MRP benefits to its employee, pending the outcomeof its challenge to the lead standard in the court of appeals.[[7\/]]The Secretary argues that, because the obligation to pay MRP benefits becameeffective on March 1, 1979, and it is undisputed that RSR did not pay MRP benefitsdirectly to King during the period of his temporary removal between March 1 and May 22,RSR clearly violated the requirements of subparagraph (k)(2)(i).\u00a0 The Secretary addsthat RSR was obligated to fully comply with the requirements of the regulation while itwas the subject of judicial review.\u00a0 He notes that section 6(f) of the Act, 29 U.S.C.? 655(f), specifically states that such a petition for review shall not operate as a stayof the standard unless otherwise ordered by the court.[[8\/]]\u00a0 He further notes thatthe court did order a stay of part of the standard when it granted the petition (e.g., themultiple physician review mechanism), but it expressly denied a stay of enforcement of theMRP benefits provision.The United Steelworkers of America (\”the Union\”), which was grantedamicus curiae status in this case (Docket No. 79-6392) on review, also contends that toallow RSR to defer the payment of MRP benefits simply because RSR did not believe that theAct authorizes MRP would defeat the protective measures that the D.C. Circuit determinedwould become effective on March 1, 1979, when it refused to stay the MRP provision pendingRSR’s challenge.RSR defends by arguing that its escrow policy and the parties’ stipulationregarding payment merely permitted the withholding of funds in a reasonable manner and foran equitable purpose until the employees’ rights could be definitively established. \u00a0RSR asserts that, by agreeing to be bound by the outcome of its validity challenge inSteelworkers, it intended that the Secretary would hold in abeyance the issue of whetherits escrow policy violated the standard until the judicial proceedings werecompleted.\u00a0 Accordingly, RSR concludes that it has not manifested any intent tocircumvent or undermine the standard’s MRP provisions.\u00a0 RSR denies that the issuehere is whether it paid MRP benefits directly to employees; it claims that the issue iswhether its actions, when considered under the totality of the circumstances, constitutedcompliance with the standard.\u00a0 RSR maintains that compliance was achieved. Finally,RSR denies that its withholding of MRP payments amounted to a stay that the court refusedto grant.\u00a0 To the contrary, RSR contends that, under a court stay, employees’ claimsto MRP benefits would not begin until after the stay was lifted, whereas these employeescontinued to accrue MRP benefits — albeit in escrow — throughout the course of the courtproceedings.Contrary to RSR’s assertions, the issue before us is whether it paid MRPbenefits to employee King.\u00a0 RSR points to no provision in the standard or itspreamble and attachments, no action on the part of the Secretary or the courts, and noCommission or judicial precedent that purportedly authorized it to deviate from thespecific requirements of the cited standard.In upholding the validity of the MRP provision as a supplement to the medicalsurveillance provisions of the standard, the D.C. Circuit noted that, OSHA regards MRP as a sine qua non of the lead standard, insisting thatwithout it employees, fearing they will lose jobs if they demonstrate high blood-leadlevels, will refuse to participate in medical surveillance.Steelworkers, 647 F.2d at 1228.The standard explicitly requires that an employer provide MRP benefits oneach occasion that an employee is removed from a job involving exposure to lead orotherwise limited in employment activity pursuant to the standard.\u00a0 The standard isequally clear in requiring that the benefits be provided to the employee.\u00a0Subparagraph 1025(k)(2)(ii) provides that \”the employer shall maintain theearnings, seniority and other employment rights and benefits of an employee as though theemployee had not been removed . . . .\” Because the funds were not available for useby the employee as they accumulated, they cannot be considered a substitute for earningsas though the employee had not been removed.\u00a0 It is undisputed that Lester King wastemporarily removed.\u00a0 It is also undisputed that MRP benefits were not provided toKing.\u00a0 The employee was entitled to MRP funds by virtue of the standard, which cameinto full force and effect on March 1, 1979.\u00a0 As the Secretary and the UnitedSteelworkers correctly note, the court in which RSR sought to invalidate the lead standardspecifically denied the motion to stay the MRP provision pending judicial review. As aconsequence, it was RSR’s duty under the law to pay MRP benefits pursuant to the standard.\u00a0 RSR’s intent in establishing its escrow policy is irrelevant to the question ofwhether it violated the Act.\u00a0 The only relevant issue is whether RSR complied withthe requirements of 29 C.F.R. ? 1910.1025(k)(2)(i).\u00a0 We conclude that RSR violated29 C.F.R. ? 1910.1025 (k)(2)(i) when it established an account in which to deposit fundsinstead of paying MRP benefits to its employee during the period of his temporary removal.CThe next issue to be determined is whether RSR’s termination of King’s employment on May22, 1979, provided a sufficient basis under the standard for the termination of King’sright to continue to receive MRP benefits during the period of his removal from exposureto lead.\u00a0 To resolve this issue, we must first consider the scope and purpose of thelead standard’s removal provisions.[[9\/]]\u00a0 On its face, subsection (k)(1) of the lead standard requires that employeesbe temporarily removed from specified levels of lead exposure under either of twocircumstances: due to elevated blood lead levels, pursuant to prescribed removal triggerlevels which are phased in over a five-year period; [[10\/]] or due to a physicians’determination of a medical condition warranting removal.[[11\/]] In addition, if themultiple physician review mechanism or an alternate physician determination mechanism hasnot yet resulted in a physicians’ determination of a medical condition warranting removal,subparagraph (k)(1)(v)(A) prescribes that \”[t]he employer may remove the employeefrom exposure to lead, provide special protective measures to the employee, or placelimitations upon the employee, consistent with the medical findings, determinations, orrecommendations of any of the physicians who have reviewed the employee’s healthstatus.\”In addition to these temporary removal provisions, the lead standard alsocontains provisions concerning the compensation to be paid and other benefits to beprovided employees who are temporarily removed.\u00a0 The cited subparagraph (k)(2)(i)provides that an employee whose removal is required under the standard must be providedMRP benefits for up to 18 months.\u00a0 Paragraph (k)(2)(vii) of the standard alsoprovides that, when an employer voluntarily removes an employee from exposure to leadunder circumstances where he is not required by the lead standard to do so, he mustnevertheless provide MRP benefits equal to those mandated under section 1910.1025(k)(2)(i).[[12\/]] Read together, these paragraphs of the standardindicate that whenever an employee is removed as a result of exposure to lead – whetherthat removal is required or voluntary — the employer must provide the MRP benefits.In contrast, the lead standard contains only one section that expresslyauthorizes an employer to terminate MRP benefits without returning the employee to his orher job.\u00a0 An employer may cease providing MRP benefits after an 18-month temporaryremoval period when a final medical determination is made that an employee who wasinitially removed from exposure to lead on account of an elevated blood lead level is\”incapable of ever safely returning to his or her former job status.\”\u00a0 Seesupra note 6.\u00a0 The standard does not expressly state when or whether an employer maycease providing MRP benefits where an employee was initially removed from exposure to leadfor any other reason, e.g., due to a physicians’ determination of a medical conditionwarranting removal. Nevertheless, the attachments to the preamble for the final leadstandard provide guidance as to the Secretary’s intent with respect to the termination ofMRP benefits for such employees.\u00a0 The Secretary anticipated that during the first fewyears after the effective date of the standard there would be few workers temporarilyremoved from exposure to lead as a result of physician determinations and, as workingconditions in the lead industry improved, fewer still would be removed.[[13\/]] \u00a0Nevertheless, the Secretary noted that these removals might be appropriate even though anemployee’s blood lead level remains below removal trigger levels, if the employee: (1)experiences recognized symptoms of lead poisoning; (2) acquires a temporary,non-work-related medical condition which is aggravated by lead exposure; (3) desires toconceive a child in the near future; or, (4) is pregnant.[[14\/]]\u00a0 Thus, the Secretaryintended that temporary removals of employees that were not based on elevated blood levelswould occur only under exceptional circumstances. \u00a0 Clearly, permanent removal ofemployees would be even more exceptional.\u00a0 Only \”in extremely raresituations\” did the Secretary expect a physician to conclude on the basis ofexcessive blood lead levels that a worker would never be able to safely return to priorlead exposure – and, even then, only after 18 months of removal.[[15\/]]\u00a0 In addition,the attachments state:The standard is not intended to preclude all final medical determinationsformed prior to the end of 18 months of removal which decide that a particular worker’scondition will never permit a return to a lead-exposed job.\u00a0 Determinations of thisnature might arise with respect to permanent, irreversible neurological impairment, andkidney disease.\u00a0 The standard does, however, embody the judgment that such medicaldeterminations cannot be quickly made with respect to blood lead level declines. [[16\/]]Moreover, the attachments declare that:If, however, a final medical determination is made that the worker isincapable of ever safely returning to his or her former job status, then the provision ofMRP benefits may cease.\u00a0 At that point, a worker would have to turn to the Stateworkers’ compensation system for possible relief, since continued removal would no longerconstitute a temporary medical removal under this lead standard. [[17\/]]In sum, the standard does not expressly provide for the termination of MRP benefits on thebasis of a determination of incapability not attributed to elevated blood lead levels.\u00a0Nevertheless, the attachments clearly indicate that the Secretary contemplated thatthese terminations might arise under exceptional circumstances not expressly provided forin the standard, e.g., with respect to permanent, irreversible neurological impairment andkidney disease.RSR contends, and Judge Fier found, that its decision to terminate King wasbased upon a bona fide medical determination that King was \”incapable of ever safelyreturning to his or her former job status.\”\u00a0 RSR argues that this medicaldetermination was based on King’s six-year previous medical history, including hisdecreased ability to excrete lead from his system, and not solely on King’s blood leadlevel at the time of the examination.\u00a0 The doctors detailed King’s poor personalhygiene and stated that further exposure to lead would likely prove harmful to him.\u00a0RSR concludes that the Secretary failed to produce any evidence to discredit the validityof the doctors’ evaluation and, thus, failed to carry his burden of proof that Kingremained on temporary removal status and was therefore entitled to MRP benefits.We disagree.\u00a0 The cited standard, supra note 1, creates an unequivocalobligation on the part of employers to provide MRP benefits to employees who are removedfrom exposure to lead.\u00a0 The cited standard contains no exceptions allowing anemployer to terminate those benefits during the period of the employee’s removal.\u00a0Indeed, there is apparently only one standard, section 1910.1025(k)(2) (vi)(C), thatexpressly provides for the termination of MRP benefits and that provision is clearlyinapplicable to the circumstances in this case because the employee at issue had not beenremoved from exposure to lead for an 18-month period prior to his termination. \u00a0Accordingly, there is no provision of the lead standard on which RSR can rely asauthorization for its action. Instead, RSR attempts to rely solely on language in thestandard’s attachments — language indicating that termination of MRP benefits,particularly termination prior to the expiration of the 18-month removal period, is onlyjustified in the narrowest of circumstances.\u00a0 The standard’s attachments establishguidelines for reaching such a determination.\u00a0 They indicate a strong preference forreturning the employee to his or her former job [[18\/]] unless exceptional circumstancesexist.\u00a0 Three of these conditions are specifically mentioned:\u00a0 elevated bloodlead levels after 18 months of removal from lead exposure; permanent, irreversibleneurological impairment; and kidney disease.\u00a0 Similarly, they indicate a strongpreference for broadly construing the MRP benefits provisions so that benefits areprovided to employees who are removed from lead exposure and for narrowly construing anyexceptions to the general rule that benefits be provided.[[19\/]]\u00a0 In our view, themedical exception carved out of the standard’s universal requirements is small.\u00a0 Theburden of proof is on the employer to establish that it falls within the implied andnarrowly-circumscribed exception to the clear command of the lead standard that employeeswho are removed from their jobs on account of lead exposure must be paid MRP benefits.\u00a0 Furthermore, this burden is not met by evidence of a physician’s determination thatan employee is incapable of ever safely returning to his or her former job if the evidencealso indicates that the physician’s determination is premature or based on legallyproscribed criteria. [[20\/]]In the case before us, RSR terminated Lester King on May 22, 1979, on therecommendation of its physicians — despite the absence of evidence of lead toxicity atthe time — both because of King’s decreased capacity for lead excretion and because\”there remains this problem in the future should he maintain his present exposure andblood lead level.\”\u00a0 The parties stipulated that King’s removal on February 1,1979, was based on the recommendation of RSR’s physicians, due to the results of a bloodtest indicating that King had a blood lead level of 72 ug\/100g.\u00a0 The stipulation alsorecites that the doctors who monitored King’s blood lead level on a weekly basis wouldtestify that as a result of their most recent examination of King, together with King’sblood lead history, they determined \”that Mr. King could return to work only in anon-lead environment.\”\u00a0 However, the Secretary refused to accept the validity ofRSR’s doctors’ determination recited in the stipulation.\u00a0 The evidence shows thatKing’s blood lead levels decreased during his three-month removal period from 72 ug\/100gdown to 51 ug\/100g.\u00a0 Indeed, King’s blood lead levels did not even attain the 80ug\/100g removal trigger level established for the first year of the standard.\u00a0 Wealso note that King did not present any subjective evidence of disease.\u00a0 On thisrecord, the doctors’ determination cannot be said to constitute a \”final medicaldetermination\” that King was \”incapable of ever safely returning to his…formerjob status\” as we interpret the legal criteria for termination under thestandard.[[21\/]]\u00a0 Indeed, we are unable to determine on this record that the basis ofKing’s termination was not simply high blood lead levels.\u00a0 Under subparagraph(k)(2)(vi)(C), that determination cannot be made until the employee has been temporarilyremoved for at least 18 months.[[22\/]]\u00a0 Accordingly, we conclude that the purportedfinal medical determination by RSR’s doctors was not effective to extinguish RSR’s MRPbenefit payment obligation to King, which began on March 1, 1979, the effective date ofthe regulation.\u00a0 As a result, we further conclude that King continued on temporaryremoval status after May 22, 1979, and was entitled to continue receiving MRP benefits.D We turn to the issue of whether RSR’s use of an escrow account constituted a willfulviolation of the MRP provision. [[23\/]]The Secretary argues that RSR’s refusal to pay MRP benefits was doneknowingly and purposely.\u00a0 RSR was well aware of the existence of the standard becauseit was one of the parties who petitioned for review of the standard and unsuccessfullysought a stay. \u00a0Its decision not to comply with the standard was publicized as astatement of corporate policy.\u00a0 The Secretary assails the judge’s conclusion thatRSR’s escrow policy evinced good faith and negated any willful characterization.\u00a0 TheSecretary charges that the regulation contains no provision for escrow payments.\u00a0Moreover, while acknowledging RSR’s right to test its position in the courts, theSecretary charges that RSR’s continued noncompliance despite the court of appeals’specific rejection of its application for a stay amounted to defiance of the court’s orderas well as of the standard.\u00a0 Citing Anaconda Aluminum Co., 81 OSAHRC 27\/A2, 9 BNAOSHC 1460, 1981 CCH OSHD ? 25,300 (No. 13102, 1981), the Secretary concludes that RSR’sviolation should be characterized as willful because RSR consciously ran the risk that itsinterpretation of the standard might prove to be wrong and it cannot now plead that itshould not bear the consequences of that risk.The United Steelworkers makes some of the same arguments as the Secretary,but it focuses particularly on the issue of RSR’s good faith in establishing the escrowaccount.\u00a0 The Union cites Acme Fence & Iron Co., 80 OSAHRC 13\/A2, 7 BNA OSHC2228, 1980 CCH OSHD ? 24,235 (No. 78-982, 1980), for the proposition that, if there is areasonable, good-faith difference of opinion as to a critical fact and the resolution ofthis question determines whether there is a violation, a violation will not be found to bewillful.\u00a0 Here, the Union argues, there is no good faith difference of opinionregarding a critical fact; the failure to pay full MRP benefits is admitted.Notwithstanding the Secretary’s contrary assertion, RSR claims that it hasalways believed that its \”substantial challenge\” to the standard’s validity, inconjunction with its bona fide escrow policy and its stated intention to deliver allescrowed funds to temporarily-removed employees if the standard were ultimately upheld,constituted total compliance with the Secretary’s rules and regulations.\u00a0 RSR insiststhat all of its actions, far from constituting \”indifference to\” or\”disregard of\” the regulations, were motivated by its desire to comply fullywith the letter and spirit of the law.\u00a0 RSR did not refuse to pay MRP benefits; thedelay occasioned by the escrow fund merely served to protect the legitimate interests ofall parties.\u00a0 RSR argues that it made good faith efforts to comply; its escrow policymay not reflect the best method chosen to comply, but it certainly does not manifestintentional disregard of the standard.\u00a0 RSR also asserts that this case isdistinguishable from Anaconda Aluminum Co., supra.A violation is willful in character if it was committed with either anintentional disregard of, or plain indifference to, the Act’s requirements.\u00a0 MelJarvis Construction Co., 81 OSAHRC 89\/B13, 10 BNA OSHC 1052, 1981 CCH OSHD ? 25,713 (No.77-2100, 1981).\u00a0 A violation is not willful if the employer had a good faith opinionthat the violative conditions conformed to the requirement of the cited standard.\u00a0C.N. Flagg & Co., 75 OSAHRC 32\/C6, 2 BNA OSHC 1539, 1974-75 CCH OSHD ? 19,251(No. 1409, 1975) (good faith belief concerning a factual matter critical to the existenceof the violation); see also General Electric Co., 77 OSAHRC 88\/A2, 5 BNA OSHC 1448, 1977CCH OSHD ? 21,853 (No. 11344, 1977) and General Electric Co., 75 OSAHRC 50\/A2, 3 BNA OSHC1031, 1975 CCH OSHD ? 19,567 (No. 2739, 1975), rev’d in part on other grounds, 540 F.2d67 (2d Cir. 1976) (good faith misinterpretation of the terms of the cited standard).\u00a0 The test of an employer’s good faith for the purpose of determining willfulness isan objective one, i.e., was the employer’s belief concerning a factual matter orconcerning the interpretation of a standard reasonable under the circumstances.\u00a0 MelJarvis Construction Co., supra.In Anaconda Aluminum Co., supra, the Commission rejected the employer’sargument that the violation at issue was not willful because it had a good faith beliefthat the standard did not require medical examinations for workers who were not exposed toexcessive concentrations of asbestos.\u00a0 There, the Commission found that the employerconsciously chose not to provide the examinations — despite its knowledge that theSecretary interpreted the standard to require them — hoping that its own interpretationof the standard would ultimately prevail.\u00a0 The Commission concluded that,\”[h]aving taken that course, Anaconda ran the risk that its interpretation wouldprove to be wrong and cannot now complain that it must bear the consequences of that riskand be subjected to increased penalties for noncompliance.\”[[24\/]]This case does not present a situation where the employer claims anyconfusion about whether its conduct conforms to the requirements of the Act or whether thecited standard is applicable to its operations.\u00a0 RSR’s corporate policy statementbelies its claims on review that it believed in good faith that its actions constitutedcompliance:RSR Corporation . . . believes that those portions of the regulationsrequiring a continuation of earnings to employees who have been removed from the workplace is arbitrary, capricious, and beyond the authority of the Secretary of Labor underthe Occupational Safety and Health Act of 1970 . . .With respect to the remainingprovisions of the OSHA Standard, RSR intends to comply with both the spirit and the letterof the law.(Emphasis added).Here, RSR was clearly aware of the standard’s explicit requirement to pay MRPbenefits to employees.\u00a0 RSR was also clearly aware that the D.C. Circuit Court ofAppeals had denied the stay and ordered that the MRP provision take effect on March 1,1979, while the court considered RSR’s challenge to the standard.\u00a0 Thus, RSR not onlywas aware that the Act expressly provides a means for staying a standard pending reviewbut also was aware that that means had been unsuccessfully exhausted.\u00a0 Nevertheless,RSR unilaterally effected the stay that had already been denied by the court and refusedto pay MRP benefits to its employee;[[25\/]] instead, it made deposits into a separateaccount, thereby defeating the intent of the MRP provision that employees not be adverselyaffected financially during the statutory period of removal.[[26\/]] Accordingly, weconclude that RSR’s violation of the cited MRP provision was willful.Having reversed the judge’s determination that RSR did not commit a willfulviolation of the Act, we must consider the question of the penalty to be assessed.\u00a0In light of the criteria set forth at section 17(j) of the Act, 29 U.S.C. ? 666(i), weconclude that a penalty of $1,000 is reasonable and appropriate.Accordingly, in Docket No. 79-6392, we reverse the judge’s decision vacatingthe Secretary’s citation, we find RSR in willful violation of the Act, and we assess apenalty of $1,000 for this citation.\u00a0 Moreover, because we find that the medicalrecommendation leading to the termination of King’s employment did not conclude RSR’sobligation to pay MRP benefits to King, we remand the matter to the Chief AdministrativeLaw Judge [[27\/]] in order to afford the parties the opportunity to present evidence andarguments concerning the amount of MRP benefits which are owed to this employee.\u00a0Docket No. 79-6392 is hereby severed from these consolidated proceedings pursuant toCommission Rule 10, 29 C.F.R. ? 2200.10.II Docket Nos. 79-3813 and 80-1602 AOn June 12, 1979, a compliance officer conducted an inspection of RSR’s plant in Dallas,Texas, pursuant to an employee complaint.\u00a0 The Secretary issued a citation on June25, 1979, which included three items alleging other than serious violations of theAct.\u00a0 Following RSR’s notice of contest, the case was assigned Docket No.79-3813.\u00a0 One of the items alleged a violation for failure to comply with thestandard at 29 C.F.R. ? 1910.1025(k)(2)(i).[[28\/]]\u00a0 A series of amendments to thecitation was granted.\u00a0 As a result, the original charge was revised as follows.\u00a0The characterization of the alleged violation was changed to willful.\u00a0 In addition,separate instances of noncompliance with section 1910.1025(k)(2)(i) were alleged for eachof seven employees, in lieu of the original item which had charged only a single instanceof noncompliance with the standard.[[29\/]]\u00a0 A $10,000 penalty was proposed for eachof these seven sub-items.\u00a0 Moreover, the Secretary added an eighth sub-item alleginga willful violation of the Act embracing 14 other employees as a group.[[30\/]]\u00a0 TheSecretary did not propose a penalty regarding this sub-item, expressly leaving it to theCommission’s discretion to determine an appropriate penalty.\u00a0 Finally, in each of theeight sub-items, noncompliance with section 1910.1025(k)(2)(vii).[[31\/]] is alleged in thealternative to the original charge of noncompliance with section 1910.1025(k) (2)(i).The stipulated record establishes that, during the period from March 1 toDecember 31, 1979, RSR temporarily removed 21 employees for periods of as little as 3 daysand as long as 8-1\/2 months.\u00a0 The record does not reveal the reasons for thesetemporary removals.\u00a0 The parties stipulated that RSR did not provide any of theseemployees with MRP benefits either by paying their regular salaries or by paying thedifference between their regular salaries and the amount received from workers’compensation benefits during the duration of the employees’ removal.\u00a0 Instead, RSRdeposited funds into a separate account in an amount claimed to be equivalent to the MRPpayments due under the standard.\u00a0 RSR stated that it would pay the employees out ofthese funds in the event that the validity of the MRP benefits provision of the leadstandard were \”ultimately upheld.\”\u00a0 The parties also stipulated that theseven employment terminations, see supra note 29, were \”based on the medicaldetermination of Respondent’s physicians that these employees were incapable of eversafely returning to work in a lead environment\” and that RSR had no positionsavailable which would have enabled these employees to work in an environment of leadconcentration at or below the permissible exposure limit (\”PEL\”) of 50ug\/m3.\u00a0 Moreover, RSR ceased setting aside funds in \”escrow\” for theseseven employees once they were terminated.Following an inspection of the same Dallas facility on February 22, 1980,pursuant to an employee complaint, the Secretary issued a second citation to RSR onFebruary 26, 1980, which became the contested charge in Docket No. 80-1602.\u00a0 In hiscomplaint, the Secretary alleged four separate violations of the Act for failure to complywith section 1910.1025(k)(2)(vii), supra note 12, or, in the alternative, section1910.1025(k)(2)(i), supra note 1.\u00a0 The citation arose from the employmenttermination, without prior temporary removal, of 4 other employees — not among the 21employees covered in Docket No. 79-3813 — at the Dallas plant on November 19,1979.[[32\/]]\u00a0 Each of the four violations was alleged to have been willful, with a$10,000 proposed penalty in each instance.\u00a0 The parties later stipulated that thesefour terminations were \”based upon the medical determination of Respondent’sphysicians that these employees were incapable of ever safely returning to work in a leadenvironment.\”\u00a0 None of these four employees has received any MRP benefits, norhas RSR \”escrowed\” any funds on their behalf following their termination.Based on the stipulated record filed in the consolidated proceeding in Docket Nos. 79-3813and 80-1602, Judge Dee C. Blythe concluded that RSR’s payments to an escrow fund did notconstitute a \”satisfactory or legal substitute\” for paying benefits to theemployees.\u00a0 Accordingly, he affirmed the Secretary’s allegations relating to theperiods of temporary removal for 21 employees.With respect to the 11 employees who had been terminated (seven, followingperiods of temporary removal, and four, without any prior temporary removal), Judge Blytheconsidered and rejected RSR’s argument that MRP benefits were no longer required becauseits physicians had made a \”final medical determination\” under section1910.1025(k)(2)(vi)(C), supra note 6, that the 11 employees were \”incapable of eversafely returning to [their] former job status.\”\u00a0 The judge noted first that themultiple physician review mechanism had been stayed by the D.C. Circuit Court of Appeals.\u00a0 Second, employers and employees or their authorized representatives remained freedespite the stay to agree upon the use of any expeditious alternate physiciandetermination mechanism in lieu of the multiple physician review mechanism.\u00a0 Thejudge found no indication of an agreement.\u00a0 Accordingly, Judge Blythe concluded thatthe medical determination by RSR’s physicians did not qualify as a \”final medicaldetermination\” as defined by subparagraph (k)(1)(ii)(B) and, thus, was ineffective tocut off MRP benefits.\u00a0 In addition, the judge acknowledged the standard’s intentionthat \”final medical determinations\” not be made hastily, particularly in theabsence of conditions of permanent, irreversible neurological impairment, and kidneydisease.\u00a0 Here, the judge found that the actual basis for the terminations was notspecified in the record and that blood lead levels alone would be insufficient unless theyextended over a considerable period of time.\u00a0 The judge pointed out that all of the11 employees who were terminated had blood lead levels which were below the removaltrigger level (80 ug\/100g of whole blood) that would mandate temporary removal from leadenvironments.\u00a0 Judge Blythe concluded that all 11 employees should receive MRPbenefits for 18 months or until they were found unable to return to a lead environment,pursuant to a proper \”final medical determination,\” whichever period was thelesser.\u00a0 Accordingly, the judge also affirmed the citations’ allegations relating tothe failure to pay benefits to 11 employees after the date of their employmenttermination.Nevertheless, Judge Blythe rejected the Secretary’s characterization of theviolations as \”willful\” because RSR held \”strong opinions\” that thestandard was invalid and it was entitled to test them in the courts.\u00a0 Moreover, JudgeBlythe continued, RSR’s payment of the MRP benefits into an escrow account, though not asubstitute for compliance, negated the willfulness characterization of the violations.\u00a0 He concluded that the violations were other than serious.Commissioner Cottine granted both the Secretary’s and Respondent’s petitionsfor review.\u00a0 With respect to the citation items discussed above, Commissioner Cottinespecifically directed review on the following issues:(from Respondent’s petition)1.\u00a0 Whether the judge erred in (a) finding a violation of the provisionof the lead standard at 29 C.F.R. ? 1910.1025(k)(2)(i) on the ground that \”RSR’spaying of the MRP [Medical Removal Protection] benefits into an escrow fund is not asatisfactory or legal substitute for paying the benefits to the employees\” and (b)ordering that the payments be commenced.2.\u00a0 Whether the judge erred in finding a violation of the standard at 29C.F.R. ? 1910.1025(k)(2)(vii) on the ground that \”the medical determination by RSR’sphysicians that the 11 employees [terminated on November 19, 1979] were incapable of everreturning to work in a lead environment was ineffective to cut off MRP benefits.\”(from the Secretary’s petition)3.\u00a0 Whether the judge erred in failing to find the Respondent in willfulviolation of 29 C.F.R. ?? 1910.1025(k)(2)(i) and (vii)…and in failing to assessappropriate penalties for these violations.BIn relation to the Secretary’s citations in Docket Nos. 79-3813 and 80-1602 allegingwillful violations for failure to comply with the standard at 29 C.F.R. ?1910.1025(k)(2)(i) or (vii), the parties raise essentially the same arguments as thoseraised in Docket No. 79-6392, supra, regarding the use of an escrow account, thetermination of MRP benefits, and the willful characterization of the violations.\u00a0 InDocket No. 79-3813 the Secretary’s allegations of failure to pay MRP benefits cover atotal of 21 employees.\u00a0 Rather than pay MRP benefits directly to these employeesduring the periods of their temporary removal from lead exposure, RSR set aside funds in aseparate account.\u00a0 For the reasons stated in Part I, Subpart B, supra, we concludethat RSR’s resort to an escrow device is not a substitute for compliance with thestandard. [[33\/]]In addition, the Secretary alleges noncompliance with the standard based onRSR’s failure to pay MRP benefits to seven employees in Docket No. 79-3813 and fouremployees in Docket No. 80-1602 during the period after their employment was terminated.\u00a0 RSR responds that it properly terminated these eleven employees as a result offinal medical determinations by its physicians that the employees were incapable of eversafely returning to work in a lead environment.\u00a0 Though the record does notconclusively establish the medical basis for the determination of RSR’s physicians, wenote that the sparse evidence available points to the conclusions that the employees atissue were not suffering from any detectable medical condition due to lead exposure andthat the determinations of RSR’s physicians were based solely on blood lead levels,despite the standard’s clear intent that these determinations could only be made after 18months of removal. [[34\/]]\u00a0 We also reject RSR’s implication that a finding that thephysicians made inadequate determinations to justify the cessation of MRP benefits underthe standard would cast aspirations on their professional integrity.\u00a0 Our legalconclusion is limited to a finding that RSR has not met its burden of proving, underacceptable legal standards, circumstances warranting the termination of MRP benefits.\u00a0 See Part I, Subpart C, supra.\u00a0 Accordingly, we must conclude that thedeterminations by RSR’s doctors were not effective to extinguish RSR’s MRP obligation tothose 11 employees.\u00a0 Therefore, the employees remained entitled to receive MRPpayments.The Secretary alleges that each of the MRP violations at issue in Docket Nos.79-3813 and 80-1602 was willful.\u00a0 For the reasons stated in Part I, Subpart D, supra,we conclude that RSR’s failure to pay MRP benefits to the 21 employees in Docket No.79-3813 during the periods of their temporary removal when funds were deposited in escrowaccounts was willful.\u00a0 In Docket No. 80-1602, the Secretary’s allegations of willfulfailure to pay MRP benefits cover a total of four employees, each of whom was terminatedfrom employment.\u00a0 None of these four had been previously removed from theirlead-exposed jobs.\u00a0 Consequently, MRP funds were neither paid to these employees norset aside in a separate account.\u00a0 Furthermore, seven of the 21 employees in DocketNo. 79-3813 were eventually terminated from employment.\u00a0 No MRP benefits were eitherpaid to these employees or set aside after their employment was terminated.\u00a0 On thisrecord, we conclude that RSR could not have relied in good faith upon the determinationsof its physicians that the 11 terminated employees were incapable of ever safely returningto work in a lead environment.\u00a0 RSR was intimately familiar with the lead standard asa party to the section 6(f) challenge and points to no provision of the lead standardand\/or its preamble and attachments that authorized it to permanently remove these 11employees from exposure to a lead-contaminated environment by terminating theiremployment.\u00a0 Indeed, it does not even appear that the temporary removal of theseemployees was required under the standard.\u00a0 None of the employees had blood leadlevels that would require their removal.\u00a0 See 29 C.F.R. ? 1910.1025(k)(1)(i)(A),supra note 10.\u00a0 Nor is there any evidence that any of the employees had \”adetected medical condition which places the employee at increased risk of materialimpairment to health from exposure to lead.\”\u00a0 See 29 C.F.R. ?1910.1025(k)(1)(ii)(A), supra note 11.\u00a0 On the contrary, there is no evidence of anyadverse effects on the health of the employees.\u00a0 Nor does RSR offer any legal supportfor its actions in Docket No. 80-1602 in terminating the employment of four employeeswithout first placing them on temporary removal status and without paying them any MRPbenefits.\u00a0 These four employees did not even have monies escrowed for laterdisbursement.\u00a0 Finally, we are unpersuaded by RSR’s argument that it was necessary toterminate the employment of these employees or to stop the payment of MRP benefits to themin order to protect their health.\u00a0 Clearly temporary removal of the employees inaccordance with the provisions of the lead standard would have provided this sameprotection.\u00a0 Accordingly, we conclude that RSR’s resulting failure to pay MRPbenefits to the 11 terminated employees, as well as its failure to pay MRP benefits to the21 temporarily removed employees, constituted willful violations of the Act.C In addition to the citation item alleging failure to provide MRP benefits, discussed inPart II, Subparts A and B, supra, the Secretary’s citation in Docket No. 79-3813 containedtwo items alleging other than serious violations of the Act for failure to comply with theregulation at 29 C.F.R. ? 1904.7(b)(1) [[35\/]] and the standard or regulation at 29C.F.R. ? 1910.1025(n)(4)(ii).[[36\/]]\u00a0 The Secretary subsequently amended thesecitation items to allege that the violations were \”willful\” and to proposepenalties of $1000 and $3000, respectively.These two items resulted from a series of events prior to and following theJune 12 inspection of the Dallas facility.\u00a0 First, one of RSR’s employees, IsaacJackson, submitted a written request to RSR in April 1979 for OSHA Form 200, the log andsummary of all recordable occupational injuries and illnesses.\u00a0 As stipulated laterby the parties, Jackson’s request was made in his capacity as president of the union localthat represented RSR’s employees under the collective bargaining agreement.\u00a0 At thetime of his request, however, Jackson was also a named plaintiff in a lead intoxicationclass action suit against RSR and others.\u00a0 RSR provided the portion of OSHA Form 200designated as the \”Summary,\” but declined to furnish the \”Log\”portion, asserting that Jackson would have to submit a discovery request for this materialthrough his attorney under the Federal Rules of Civil Procedure.\u00a0 This discoveryrequest was not made.\u00a0 On June 14, 1979, the class action was dismissed on RSR’smotion on the ground that the court was without jurisdiction due to the lack of diversityof citizenship.\u00a0 Four days later, RSR’s Technical Services Manager, Gerald Dumas,called the OSHA Area Office and informed OSHA that, because the suit had been dismissedagainst RSR, the company would provide the requested information to employees.\u00a0 Nosuch information was provided to Jackson.\u00a0 A week after Dumas called OSHA, on June25, 1979, OSHA cited RSR for failure to provide access to records as required by theregulation at 29 C.F.R. ? 1904.7(b)(1).In April 1979, Jackson also submitted to RSR a written request for allmonitoring data on air contaminants and the monitoring results of employee blood leveltests.\u00a0 RSR had completed first quarter air monitoring on March 3, 1979, and hadforwarded the samples to a private laboratory for analysis.\u00a0 RSR received the rawsample data from the laboratory by April and converted it into time weighted averages byMay.\u00a0 Exposure calculations were completed in August.\u00a0 Programming for dataprocessing was begun in September and the final summary was presented on December 13,1979.\u00a0 The data was printed in letter form and individual employees received theirmonitoring results in December.\u00a0 The parties stipulated that, at the time ofJackson’s request, RSR enforced a corporate policy requiring written releases fromindividual employees expressly giving the employee representative access to thatemployee’s monitoring data.\u00a0 Jackson never submitted employee releases and, thus,never received the data from the company.In addition, on February 28, 1979 (the day before the lead standard becameeffective), an oral request for all medical removal, air sampling and blood lead leveltest data was made to a company representative during a monthly union safety committeemeeting. RSR’s corporate policy requiring written releases by individual employees priorto distributing sampling data to an employee representative was also applied to thedistribution of this medical removal data.In his decision Judge Blythe found that RSR violated section 1904.7(b)(1) andsection 1910.1025(n)(4)(ii) by denying the authorized employee representative access tothe requested records.\u00a0 Specifically, the judge found that forcing Jackson to resortto legal process in order to obtain the OSHA Form 200 during the pendency of the privatesuit against RSR was without legal justification.\u00a0 As to the requests for monitoringand test data, the judge concluded that the union was entitled to the requestedinformation, that RSR was not justified in requiring written permission from individualemployees, and that RSR should have supplied it to the union as soon as it was availablein usable form.\u00a0 The judge did not find these violations to be willful, and heaffirmed them as other than serious violations.Commissioner Cottine’s direction for review granted in pertinent part thefollowing issue from the Secretary’s petition:Whether the judge erred in failing to find the Respondent in willfulviolation of 29 C.F.R. ?? . . . 1910.1025(n)(4)(ii) and 1904.7(b)(1) and in failing toassess appropriate penalties for these violations.D We turn initially to the issue of access to the OSHA Form 200.[[37\/]]\u00a0 The Secretarycontends that Judge Blythe correctly found that RSR violated the cited regulation, butthat the judge failed to articulate any reason why the violation was not willful asalleged. The Secretary points out that RSR clearly knew the requirements because it didprovide the \”summary,\” although it refused to provide the \”log.\”\u00a0 Again citing Anaconda Aluminum Co., supra, the Secretary charges that RSRconsciously and deliberately chose not to comply with the regulation, running the riskthat its own interpretation of what was meant by \”available . . . in a reasonablemanner and at reasonable times\” would prove to be wrong.\u00a0 The UnitedSteelworkers also argues that the violation was willful.In rebuttal, RSR asserts that it is undisputed in the record that RSR did notdeny the employee’s request for OSHA Form 200; it merely requested that the employeeobtain the material through discovery proceedings pursuant to the Federal Rules of CivilProcedure.\u00a0 RSR contends that it reasonably believed that access to the requesteddocuments was governed by the discovery rules, not by 29 C.F.R. ? 1904.7, because theemployee was acting in furtherance of his private lawsuit.\u00a0 Thus, RSR continues,because its belief that section 1904.7 was not applicable was reasonable, the violationshould not be characterized as willful.At the outset, we note that in the absence of exceptional circumstances anyissue neither raised in a petition for review nor directed for review by an individualmember upon his own motion is not before the Commission on review.\u00a0 Austin BuildingCo., 80 OSAHRC 98\/E1, 8 BNA OSHC 2150, 1980 CCH OSHD ? 24,839 (No. 77-3878, 1980). \u00a0See Commission Rules of Procedure 92(c) and (d), 29 C.F.R. ?? 2200.92(c) and (d).\u00a0Therefore, only the willful characterization of the violation and not the judge’sconclusion that RSR failed to comply with the regulation is before us on review.\u00a0 RSRdoes not dispute that it had knowledge of the requirements of the cited regulation.\u00a0The regulation requires that RSR provide the employee representative with the log athis request.\u00a0 RSR consciously and deliberately chose not to honor his request.\u00a0In defense, it asserts that it reasonably believed that access to the requested materialsshould properly have been made through discovery.\u00a0 However, the reasonableness ofRSR’s position is belied by the fact that it persisted in its refusal to honor the requesteven after the suit in question had been dismissed and it had assured OSHA that theinformation would be provided to employees.\u00a0 In addition, we note that there is nolanguage in the regulation and no other cited authority that lends credibility to RSR’sasserted belief that it was exempt from the regulation’s requirements. \u00a0Thus, RSR’sbelief that it was in compliance with or excused from the requirements of the regulationcould not have been held in good faith.\u00a0 See Mel Jarvis Construction Co.,supra.\u00a0 We conclude that RSR’s failure to provide access to the log of all recordableoccupational injuries and illnesses pursuant to section 1904.7(b) constituted anintentional disregard of the requirements of the regulation and, accordingly, was awillful violation of the Act.EWe next turn to the issue of access to monitoring records.[[38\/]]\u00a0 The Secretarynotes on review that the judge failed to conclude that the violation was willfulnotwithstanding the finding that RSR’s ground for failing to provide access to theenvironmental monitoring data requested by the union representative pursuant to section1910.1025 was \”of the nit-picking type.\”\u00a0 The Secretary argues that RSR wasclearly aware of the requirements of the standard, yet RSR refused to present theinformation on the ground that the employee representative never presented employeerelease for the data.\u00a0 The Secretary urges that the standard contains no requirementfor releases.\u00a0 Moreover, the D.C. Circuit in Steelworkers and the judge belowconcluded that this restrictive reading would effectively prevent a union from monitoringcompliance with the standard.\u00a0 The Secretary concludes that RSR’s choice not toprovide the data was conscious and deliberate, and, thus, it was willful.RSR maintains that at the time of the violation it believed that the disjunctive ‘or’ inthe standard meant that an employer had a choice regarding the means of access to thisdata — access could be provided to either employees and former employees or to theirauthorized employee representative.[[39\/]]\u00a0 Thus, RSR asserts that it believed thatit fully complied with the mandate of the standard by providing this data to each employeeto whom it pertained.\u00a0 RSR adds that the subsequent amendment of the standardsupports its interpretation; the fact that the pertinent wording was changed from\”or\” to \”and\” suggests that the rule previously in effect allowed theconclusions drawn by RSR.[[40\/]]\u00a0 RSR concludes that it should not be penalized forconduct pursued according to a reasonable interpretation — confirmed by the subsequentamendment — of a government regulation.In the United Steelworkers’ view, RSR’s disjunctive reading of the term\”or\” in the cited standard or regulation is \”absurd and irrational.\”\u00a0Under that interpretation, one former employee could request access to all therecords under this section, copy a few of the items and forever preclude any currentemployee, other former employee or the union from looking at the records.\u00a0 In lightof the asserted basis of RSR’s decision to impose restrictions on the employeerepresentative’s access to the environmental monitoring data, and because the refusalformed part of what the Union asserts is a pattern of denial of information, the Unioncontends that violation meets the criteria for willfulness.The judge concluded that the interpretation of subparagraph 1025(n)(4)(ii)advocated by the Secretary and the United Steelworkers is correct and, based on thatinterpretation, further concluded that RSR failed to comply with this standard orregulation.\u00a0 The correctness of these holdings is not at issue before us onreview.\u00a0 See Austin Building Co., supra.\u00a0 Nevertheless, the Secretary’ssubsequent amendment of the standard or regulation, replacing \”or\” with\”and,\” lends credibility to RSR’s argument that the original standard couldreasonably have been read disjunctively rather than conjunctively.\u00a0 The plausibilityof such an interpretation precludes us from finding that RSR’s failure to comply withsection 1910.1025(n)(4)(ii) was intentional or due to indifference to the Act’srequirements. \u00a0As noted above, the test of an employer’s good faith for purposes ofdetermining willfulness is an objective one, i.e., was the employer’s belief concerning afactual matter or concerning the interpretation of a standard reasonable under thecircumstances. \u00a0On this record it cannot be concluded that RSR’s interpretation ofthe standard was unreasonable.\u00a0 See General Electric Co., supra.\u00a0 Accordingly,we conclude that RSR’s violation of section 1910.1025(n)(4)(ii) was not willful.[[41\/]]FIn summary, in Docket No. 79-3813, the Commission affirms that part of the judge’sdecision which concludes that RSR’s violation of the standard or regulation at 29 C.F.R.? 1910.1025(n)(4)(ii) was other than serious and not willful.\u00a0 In addition, theCommission reverses the judge’s decision insofar as it failed to find that RSR’snoncompliance with the regulation at 29 C.F.R. ? 1904.7(b)(1) and the standard at 29C.F.R. ? 1910.1025(k)(2)(i) or (vii) was willful as alleged by the Secretary.\u00a0 InDocket No. 80-1602, the Commission reverses the judge’s decision insofar as it failed tofind that RSR’s noncompliance with the standard at 29 C.F.R. ? 1910.1025(k)(2)(i) or(vii) was willful as alleged by the Secretary.Having carefully reviewed the record in light of the statutory penaltyassessment criteria prescribed in section 17(j) of the Act, 29 U.S.C. ? 666(i), a penaltyof $1,000 is assessed for RSR’s willful violation of 29 C.F.R. ? 1904.7 (b)(1), and nopenalty is assessed for the other than serious violation of 29 C.F.R. ?1910.1025(n)(4)(ii).In Docket No. 79-3813, the Secretary alleged seven separate instances ofnoncompliance with the MRP provisions for each of the seven employees who were terminatedfrom employment.\u00a0 The Secretary proposed a $10,000 penalty for each of these allegedwillful violations.\u00a0 Similarly, in Docket No. 80-1602, the Secretary alleged separatewillful violations and proposed separate $10,000 penalties for each of four employees who were also terminated from employment.\u00a0Finally, in Docket No. 79-3813, the Secretary alleged an additional willfulviolation based on RSR’s failure to pay MRP benefits to fourteen employees who weretemporarily removed from the workplace.\u00a0 The Secretary did not make a penaltyproposal with respect to this final alleged violation.Commissioner Cottine would assess a per capita penalty of $1,000 for each ofthe eleven separately charged violations involving the terminated employees.\u00a0 Hewould assess a penalty of $10,000 for the twelfth charged violation involving the fourteentemporarily removed employees because $10,000 is the maximum penalty that may be assessedfor a willful violation under section 17(a) of the Act, 29 U.S.C. ? 666(a).\u00a0 InCommissioner Cottine’s view, the standards violated in these cases were designed tomaximize individual employee participation in the medical surveillance program requiredunder the lead standard and the violations are uniquely individual in nature.\u00a0 Seesupra notes 19 & 26.\u00a0 Furthermore, separate instances of violative conduct by theemployer are involved.\u00a0 Under Commission precedent, where separately chargedviolations involve a single instance of substantially the same violative conduct, theviolations merge into a single violation.\u00a0 Alpha Poster Service, Inc., 76 OSAHRC141\/B8, 4 BNA OSHC 1883, 1976-77 CCH OSHD ? 21,354 (No. 7869, 1976).\u00a0 However,separate instances of the same violation may be charged either in combination or asseparate violations.\u00a0 See Pratt & Whitney Aircraft, 81 OSAHRC 39\/A2, 9 BNA OSHC1653, 1679-1680, 1981 CCH OSHD ? 25,359 at p. 31,526 (No. 13401, 1981), appeal withdrawn,No. 81-4104 (2d Cir. Aug. 3, 1981) (combined); Hoffman Construction Co., 78 OSAHRC 2\/A2, 6BNA OSHC 1274, 1977-78 CCH OSHD ? 22,489 (No. 4182, 1978) (separate). Accordingly, theSecretary has the discretion to seek separate penalties for separate instances of the sameviolation.\u00a0 Consistent with this precedent and the individual nature of theseviolations, Commissioner Cottine would affirm twelve separate willful violations ascharged and assess separate penalties for each.\u00a0 Moreover, Commissioner Cottine wouldassess substantial penalties for these violations, computed in the manner described aboveand totaling $17,000 in Docket No. 79-3813 and $4,000 in Docket No. 80-1602.\u00a0 Inorder for an agency’s penalty assessment role to function effectively as a means ofpromoting a statute’s remedial objective, the penalties assessed should serve to motivatebehavior to achieve that objective.\u00a0 See generally, Diver, The Assessment andMitigation of Civil Money Penalties by Federal Administrative Agencies, 79 COLUMN. L. REV.1435 (1979).\u00a0 In Commissioner Cottine’s view, insubstantial penalty assessments inthese cases unrelated to the number of employees denied benefits would encouragecompliance with the medical removal protection provisions of the standard or advance theachievement of a safe and healthful workplace.[[42\/]]Commissioner Cleary finds it unnecessary to consider whether the Secretary’saction in alleging separate violations and seeking separate penalties for each employeeharmed was a proper exercise of administrative discretion.\u00a0 Ultimate authority forassessment of penalties lies with the Commission.\u00a0 See 29 U.S.C. ? 666(j); UnitedStates Steel Corporation, 82 OSAHRC, 10 BNA OSHC 2123, 1982 CCH OSHD ? 26,297 (No.77-3378, 1982); H.H. Hall Construction Co., 81 OSAHRC 91\/D12, 10 BNA OSHC 1042, 1981 CCHOSHD ? 25,711 (No. 76-4765, 1981); Hoffman Construction Co., 78 OSAHRC 2\/A2, 6 BNA OSHC1274, 1978 CCH OSHD ? 22,489 (No. 4182, 1978).While he agrees with Commissioner Cottine that penalty assessments shouldserve to motivate behavior to achieve compliance with the Act’s requirements, CommissionerCleary is mindful that the Act’s primary purpose is remedial.\u00a0 Indeed, it has beenthe usual practice of the Secretary in proposing penalties and of the Commission inassessing them to group all instances of noncompliance with a single standard at one siteinto one citation with one penalty.[[43\/]]\u00a0 See, for example, United States SteelCorporation, supra; OSHA Field Operations Manual, Chapter X-C1(a).In exercising their respective authorities as proposer and assessor ofpenalties, the Secretary and the Commission must keep in mind that the penalty provisionof the Act, section 17(j), already provides for the inclusion of employee numbers inpenalty assessment. Section 17(j) directs that the number of employees affected by analleged violation (\”gravity of the violation\”) and the company size overall areto be considered in penalty calculations.\u00a0 Consistent with this mandate, the OSHAField Operations Manual provides at Chapter XI-C3(c) that proposed gravitycharacterizations be based in part on the number of employees exposed, and ChapterXI-C3(e) provides for a penalty reduction of up to 40% based on overall company size.Although assessment of individual penalties per employee harmed may not beprecluded by section 17(j), Commissioner Cleary finds no basis in this case for such aresult.\u00a0 The Secretary has offered no reason for this departure from his ownpreviously announced enforcement policies and from well settled Commissionprecedent.[[44\/]]\u00a0 In light of these considerations and the fact that the affectedemployees will now be provided with the benefits to which they are entitled, CommissionerCleary finds it sufficient to assess penalties of $1,000 each for Docket Nos. 79-3813 and80-1602.Under these circumstances, the Commission members who join in affirmingwillful MRP violations agree to enter an order assessing penalties in amounts thatrepresent common minimum penalties.\u00a0 Both Commissioners therefore join in assessingsingle penalties of $1,000 each in Docket No. 79-3813 and in Docket No. 80-1602 for RSR’swillful violations of the Act based on failure to comply with 29 C.F.R. ?1910.1025(k)(2)(i) or (vii).Because the Commission finds that the medical determinations that resulted inthe termination of 11 employees here did not conclude RSR’s obligation to pay MRP benefitsto those employees, these cases are remanded to Judge Blythe in order to afford theparties the opportunity to present evidence and arguments concerning the amount of MRPbenefits owed to these employees. Docket Nos. 79-3813 and 80-1602 are hereby severed fromthese consolidated proceedings pursuant to Commission Rule 10, 29 C.F.R. ? 2200.10.III Docket No. 79-5062AIn August 1979, a compliance officer conducted an inspection of RSR’s plant inIndianapolis, Indiana.\u00a0 As a result of this inspection, OSHA issued two citations toRSR on September 5, 1979:\u00a0 the first, alleging a serious violation of the Act forfailure to comply with the standard at 29 C.F.R. ? 1910.1025(k)(1)(i), supra note 10; andthe second, alleging other than serious violations of the Act for failure to comply withthe standards at 29 C.F.R. ? 1910.1025(k)(2)(i), supra note 1, and 29 C.F.R. ?1910.1025(k)(2)(iv).[[45\/]]\u00a0 The Secretary proposed a $700 penalty for the violationalleged in the first citation and no penalty for the two violations alleged in the second.\u00a0 The Secretary later amended these charges to allege that the violations that wereoriginally characterized as other than serious were willful and to propose a combined$8,000 penalty for those violations.The citations at issue grew out of RSR’s use of a \”special projectcrew,\” which it inaugurated on April 16, 1979.\u00a0 The special project crew wasbegun at the Indianapolis facility four days after RSR announced its corporate policycreating an escrow fund pending the outcome of its challenge to the MRP provision of thelead standard.\u00a0 The crew was comprised of those employees who were removed from RSR’sIndianapolis plant based on elevated blood lead levels.\u00a0 Crew members were assignedwork (e.g., picking up trash, weeding, clearing brush, general maintenance of the grounds)outside the fenced-in area of the plant.\u00a0 They were required to wear respiratoryprotection at all times.The stipulated record establishes that ambient air sampling conducted by RSRon May 21, 1979, in the area where the special project crew had been working\”indicated\” that one of its employees, Gray, had a time-weighted average(\”TWA\”) exposure to lead at or above 100 ug\/m3 on that date.\u00a0 At the timeof this air sampling, Gray’s blood lead level was recorded at 82 ug\/100g of whole blood;for one test prior to that date and for two tests subsequent to that date his blood leadlevel was recorded at or above 80 ug\/100g of whole blood.\u00a0 Accordingly, firstcitation charged RSR with noncompliance with section 1910.1025(k)(1)(i) for having failed,during the first year following the effective date of the standard, to remove an employeefrom work having a daily eight-hour TWA exposure to lead at or above 100 ug\/m3 on eachoccasion that a periodic and follow-up blood sampling test conducted pursuant to thissection indicated that the employee’s blood lead level was at or above 80 ug\/100g of wholeblood.The second citation alleged that RSR willfully failed to pay MRP benefits tocertain employees assigned to the special project crew. Specifically, in April 1979, threeemployees–Franklin, Calhoun and Strong–were informed prior to the end of their scheduled40-hour work weeks that they were being removed from their normal duties and reassigned tothe special project crew, commencing the following week.\u00a0 As a result, they were onlypaid for 8 hours, 30.5 hours, and 32 hours respectively, during the 40-hour work weekprior to joining the special project crew.\u00a0 In addition, three otheremployees–Woods, Jones and Denny–were placed on temporary removal about this time due toelevated blood lead levels and received workers’ compensation benefits during the periodsof their removal. RSR did not compensate any of the three for the difference between hisworkers’ compensation benefit payment and his normal in-plant wages.\u00a0 Accordingly,the second citation charged RSR with a failure to comply with section 1910.1025(k)(2)(i)in that RSR failed to maintain the earnings of employees Franklin, Calhoun, and Strongduring the week prior to their reassignment to the special project crew, and also afailure to comply with section 1910.1025(k)(2)(iv) because the employer did not payemployees Woods, Jones, and Denny the difference in lost earnings between workers’compensation payments and normal earnings.\u00a0 The parties stipulated that Franklin,Woods, Jones and Denny would be entitled to the money which RSR had escrowed on theirbehalf during the periods of their removal — commencing on the March 1, 1979 effectivedate of the standard — in the event that the standard were \”ultimately upheld.\”\u00a0 It appears that no MRP funds were ever placed in escrow on Calhoun and Strong’sbehalf.\u00a0 The stipulation also noted a provision in the collective bargainingagreement at RSR’s plant whereby the employer reserved the right to make changes in thenumber of employee work hours and did not guarantee a 40-hour week.In his decision, Judge F. Daley Abels affirmed the citations but modified theproposed penalties.\u00a0 With respect to the first citation, the judge noted that thestipulation established both that the air sampling and the blood lead level brought Graywithin the purview of section 1910.1025(k)(1)(i) and that Gray was a member of the\”special project crew.\”\u00a0 There was no evidence that Gray’s status changedsubsequent to the May 21, 1979 air sampling and the judge inferred that Gray continued tobe a member of that crew. Judge Abels thus concluded that Gray’s continued membership inthe crew satisfactorily showed RSR’s failure to remove him as required by the statute.\u00a0 RSR had argued before the judge that, based on an error factor that the OSHA FieldOperations Manual stated should be used in analyzing air sampling results, the samplingresult only reflected a possible exposure to lead in excess of the PEL and, therefore, theSecretary had not established an actual violation, but only the possibility of one. \u00a0Judge Abels dismissed this contention on the basis that RSR could not later claim anexposure to lead at possibly less than the prescribed limit when it had stipulated thatthe May 21, 1979 sampling indicated that Gray had a TWA exposure to lead at or above 100ug\/m3 on that date.With respect to the second citation, Judge Abels noted that both the D.C.Circuit Court of Appeals in the Steelworkers decision and the U.S. Supreme Court in itsruling on a motion to stay the lead standard in Lead Industries Association, Inc. v.Marshall, supra, had refused to stay the application of the MRP benefits provision. \u00a0He concluded that the lead standard requires that the money be paid to employees in orderto maintain their earnings during removal and that it makes no provision for establishingan escrow account.\u00a0 Accordingly, Judge Abels held that RSR’s utilization of theescrow account violated the cited standards with respect to Franklin, Woods, Jones andDenny.\u00a0 Concerning Calhoun and Strong, Judge Abels noted both RSR’s stipulation thatemployees on the special project crew are removed due to elevated blood lead levels, andalso its stipulation that RSR had reassigned Calhoun and Strong to the crew. \u00a0Therefore, Judge Abels found that these employees had been removed on account of elevatedblood lead levels. He further concluded that RSR’s duty to maintain the removed employees’earnings commenced with their removal from their regular work assignment and was notpostponed until the next scheduled work day for the special project crew.\u00a0 He furtherconcluded that RSR’s reliance on the collective bargaining provision concerning assignmentof work hours was misplaced.\u00a0 In essence, he found that the employees had beentemporarily removed from their lead-contaminated work areas pursuant to the provisions ofthe lead standard and not merely reassigned under the terms of the collective bargainingagreement.\u00a0 Judge Abels determined that RSR violated the standard by failing to payCalhoun and Strong for the hours that each did not work after their removal but beforethey started on the special project crew.Judge Abels also agreed with the Secretary’s characterization of theviolations charged under the second citation involving Franklin, Calhoun, Strong, Woods,Jones and Denny as willful.\u00a0 The judge rejected RSR’s contention that its use of theescrow account during the pendency of its challenge to the validity of the standardindicated its willingness to provide MRP benefits.\u00a0 Judge Abels found that RSRdeliberately, intentionally, and voluntarily elected to violate the provisions of thestandard with full knowledge that the standard was in full force and effect at the time ofits election.\u00a0 Thus, he concluded that RSR willfully violated the Act.\u00a0 JudgeAbels assessed penalties of $900 for the first citation and $6,000 for the second.Commissioner Cottine granted Respondent’s petition for review, specificallydirecting review on the following issues:1.\u00a0 Whether the judge erred in concluding that Respondent’s violationsof the lead standard provisions at 29 C.F.R. ?? 1910.1025(k)(2)(i) and (k)(2)(iv) were willful and in assessing a total penalty of$6,000.2.\u00a0 Whether the judge erred in affirming a serious violation of 29C.F.R. ? 1910.1025(k)(1)(i) based on employee lead exposure in excess of the limitestablished by the cited standard.B We conclude that RSR’s failure to comply with the standards at 29 C.F.R. ??1910.1025(k)(2)(i) and (iv) was willful.[[46\/]]\u00a0 See Part I, Subpart D, supra. \u00a0RSR raises essentially the same arguments which we have already rejected on review inDocket Nos. 79-6392, 79-3813 and 80-1602 and which were also asserted before and rejectedby Judge Abels below.\u00a0 Inasmuch as Judge Abels correctly decided the issue beforehim, we adopt his findings and conclusions.\u00a0 See Adrian Construction Co., 79 OSAHRC16\/A2, 7 BNA OSHC 1172, 1979 CCH OSHD ? 23,389 (No. 15414, 1979); Gulf Oil Co., 77 OSAHRC216\/B10, 6 BNA OSHC 1240, 1978 CCH OSHD ? 22,737 (No. 14281, 1977).CWe next consider the alleged serious violation of 29 C.F.R. ? 1910.1025 (k)(1)(i) basedon employee exposure to levels of airborne lead in excess of the limit established by thecited standard.[[47\/]]\u00a0 The Secretary argues that he satisfied his burden of provingthis alleged violation by showing:\u00a0 (1) the stated purpose of the \”specialprojects crew\” was to reassign employees with elevated blood lead levels; (2) Graywas exposed to airborne lead excess of 100 ug\/m3; and (3) Gray’s blood lead levels were inexcess of 80 ug\/100g for one test prior to the air sampling and for two tests followingit.\u00a0 The United Steelworkers makes essentially the same argument as the Secretary.RSR points out that the three parties stipulated in pertinent part:Ambient air sampling conducted by Respondent on May 21, 1979, indicated thatMr. Joe Gray had a TWA exposure to lead at or above 100 ug\/m3 on that date,. . . . At thetime of the ambient air sampling conducted by Respondent on May 21, 1979, Mr. Gray’s bloodlead was recorded at 82 ug\/100g of whole blood and for one test prior to this date and twotests subsequent to this date his blood lead had been at or above 80 ug\/100g of wholeblood.Citing to this language RSR reiterates the contention it made before thejudge that the parties merely stipulated what the sampling \”indicated.\”\u00a0 Inits view, the parties stipulated neither to the validity of the test’s results nor to itsprobative value.\u00a0 It adds that the Secretary’s Field Operations Manual provides asampling and analytical error (SAE) number in order to account for variations in samplingaccuracy.\u00a0 Applying the relevant SAE number, it asserts that the actual exposurelevel could have been less than 100 ug\/m3 (as little as 93 ug\/m3).\u00a0 Therefore, RSRinsists that the Secretary has not proved a violation, only a possible violation.We note first that the parties stipulated to the facts in issue.\u00a0 Thisstipulation conclusively establishes the material facts it contains. See Todd ShipyardsCorp. v. Secretary of Labor, 586 F.2d 683 (9th Cir. 1978).\u00a0 The material facts reporta level of exposure to lead in excess of that permitted by the standard.\u00a0 Moreover,RSR has presented no evidence to invalidate the accuracy of this specific sample and noreason to disregard the stipulation.\u00a0 Accordingly, we conclude that Judge Abelscorrectly rejected RSR’s argument that the stipulated sampling results lack validity.Nevertheless, it is the Secretary’s burden to prove RSR’s failure to complywith the requirements of the standard. See Daniel International Corp., Wansley Project, 81OSAHRC 71\/D6, 9 BNA OSHC 2027, 1981 CCH OSHD ? 25,813 (No. 76-181, 1981). The citedstandard requires that the employer shall remove an employee from excessive exposure.\u00a0 Judge Abels found a violation here, but acknowledged that there was no evidence asto employee Gray’s status subsequent to the May 21, 1979 air monitoring. The judge merelyinferred that Gray remained a member of the special project crew subsequent to May 21,1979.\u00a0 This inference proved critical in Judge Abels’ analysis, because he declaredthat Gray’s continued membership in the crew satisfactorily showed a failure by RSR toremove Gray from the work in question as mandated by the standard.\u00a0 However, weconclude that this inference lacks support in the record.\u00a0 There is no recordevidence here establishing whether or not Gray was removed from the work area where he wassubjected to this excessive exposure.\u00a0 Although in its brief RSR characterized theSecretary as having shown a \”possible\” violation, RSR referred only to thesignificance of the stipulations regarding Gray’s measured TWA exposure.\u00a0 Nothingsuggests that the reference pertained to other matters which were not addressed in thestipulations.\u00a0 Since the parties did not stipulate as to whether Gray remained amember of the \”special projects crew,\” we do not interpret RSR’s brief asexpressing any view on that question.\u00a0 Under the circumstances, we must reverse thisportion of the judge’s decision and vacate the citation.[[48\/]]Accordingly, in Docket No. 79-5062, we affirm that portion of Judge Abels’ decisionfinding RSR in willful violation of the standards at 29 C.F.R ?? 1910.1025(k)(2)(i) and(iv) for failure to pay MRP benefits.\u00a0 We also affirm the judge’s assessment of a$6,000 penalty for this willful violation.[[49\/]]\u00a0 In addition, we reverse thejudge’s decision insofar as it finds RSR in noncompliance with the standard at 29 C.F.R.? 1910.1025(k)(1)(i) and we vacate the citation alleging that violation.\u00a0 Becausethe record does not establish the amount of the MRP benefits that Calhoun and Strong areentitled to, we remand this case to the Chief Administrative Law Judge so that the partiesmay be provided an opportunity to present evidence and arguments on this issue.[[50\/]]\u00a0 Finally, pursuant to Commission Rule 10, 29 C.F.R. ? 2200.10, this case is herebysevered from these consolidated proceedings.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 JAN 31 1983The Administrative Law Judge decision in this matter is unavailable in this format.\u00a0 To obtain a copy of this document, please request one from our Public InformationOffice by e-mail ( [email protected] ),telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1\/]] 29 C.F.R. ? 1910.1025(k)(2)(i) provides:(k) Medical Removal Protection-*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(2) Medical removal protection benefits-(i) Provision of medical removal protection benefits.The employer shall provide to an employee up to eighteen (18) months of medical removalprotection benefits on each occasion that an employee is removed from exposure to lead orotherwise limited pursuant to this section.[[2\/]] The question of whether the cited standard applies to persons alreadyremoved as of March 1, 1979, or only to persons removed on or after that date is notraised by the parties.\u00a0 Instead, their focus is solely on King’s removal statusbeginning on March 1.\u00a0 The Secretary asserts that RSR must provide MRP benefits toKing for up to 18 months, from March 1, 1979, up to September 1, 1980.\u00a0 RSR’sposition is that, at most, King is entitled to MRP benefits through May 22, 1979, the datehis employment was terminated.[[3\/]] The Secretary issued the new lead standard in November 1978.\u00a0\u00a0 It was published at 43 Fed. Reg. 53007 (1978), with minor amendments at 44Fed. Reg. 5446 (1979).\u00a0 The Preamble to the standard was published at 43 Fed. Reg.52952-53007 (1978), with Attachments to the Preamble at 43 Fed. Reg. 54354-54509 (1978).\u00a0 The standard was quickly challenged in the court of appeals both by employers –including RSR — and by employee representatives — including the United Steelworkers ofAmerica, which is also a party in some of these proceedings before the Review Commission.\u00a0 These challenges pursuant to section 6(f) of the Act, 29 U.S.C. ? 655(f), wereconsolidated before the D.C. Circuit under the name United Steelworkers of America v.Marshall.\u00a0 Several of the petitioners, including RSR, moved that the court of appealsstay enforcement of the lead standard pending disposition of their petition for review.\u00a0 On March 1, 1979, the court partially stayed the lead standard by delaying therequirements for installing engineering controls and for instituting work practicecontrols.\u00a0 29 C.F.R. ? 1910.1025 (e)(1).\u00a0 It also stayed a part of the standardwhich established a \”multiple physician review mechanism\” concerning employeemedical examinations.\u00a0 29 C.F.R. ? 1910.1025(j)(3)(iii).\u00a0 However, enforcementof the permissible exposure limit (PEL) and provisions for environmental monitoring,recordkeeping, employee education and training, medical surveillance, and medical removalprotection was permitted to begin on March 1, 1979.\u00a0 On August 15, 1980, the courtissued its decision on the ? 6(f) challenge, largely upholding the validity of thestandard.\u00a0 It ruled that the substantive provisions of the lead standard, includingthe MRP benefits program, the multiple physician review procedure and the rules governingaccess to medical records, fell within the scope of the Secretary’s power under the Actand were reasonable exercises of that power.\u00a0 United Steelworkers of America v.Marshall, 647 F.2d 1189 (D.C. Cir. 1980). Industry parties subsequently sought certioraribefore the United States Supreme Court, again seeking a stay pending review.\u00a0 OnDecember 8, 1980 the Supreme Court granted a partial stay, which was essentially the sameas the stay previously entered by the Court of Appeals.\u00a0 Lead Industries Association,Inc. v. Marshall, 449 U.S. 1029 (1980).\u00a0 On June 29, 1981, the Supreme Court deniedthe lead industry representatives’ petition for certiorari.\u00a0 Lead IndustriesAssociation, Inc. v. Marshall, 453 U.S. 913 (1981).[[4\/]] See the standard at 29 C.F.R. ? 1910.1025(k)(1)(ii)(B).\u00a0 Thestandard at 29 C.F.R. ? 1910.1025 (j)(3) sets forth the requirements for the multiplephysician review mechanism and for alternate physician determination mechanisms.[[5\/]] 29 C.F.R. ? 1910.1025(k)(1)(ii)(C) provides:(k) Medical Removal Protection (1) Temporary medical removal and return of an employee-* * *(ii) Temporary removal due to a final medical determination.* * *(C) Where a final medical determination results in any recommended special protectivemeasures for an employee, or limitations on an employee’s exposure to lead, the employershall implement and act consistent with the recommendation. [[6\/]] 29 C.F.R. ? 1910.1025(k)(2)(vi)(C) provides:(k) Medical Removal Protection -* * *(2) Medical removal protection benefits-***(vi) Employees whose blood lead levels do not adequately decline within 18months of removal.\u00a0 The employer shall take the following measures with respect toany employee removed from exposure to lead due to an elevated blood lead level whose bloodlead level has not declined within the past eighteen (18) months of removal so that theemployee has been returned to his or her former job status:***(C) Where the final medical determination has not yet been obtained, or onceobtained indicates that the employee may not yet be returned to his or her former jobstatus, the employer shall continue to provide medical removal protection benefits to theemployee until either the employee is returned to former job status, or a final medicaldetermination is made that the employee is incapable of ever safely returning to his orher former job status.(Emphasis added.)[[7\/]] All three Commissioners join in this subpart (Part I B) of theCommission’s decision.[[8\/]] Section 6(f) of the Act, 29 U.S.C. ? 655(f), provides:Any person who may be adversely affected by a standard issued under thissection may at any time prior to the sixtieth day after such standard is promulgated filea petition challenging the validity of such standard with the United States court ofappeals for the circuit wherein such person resides or has his principal place ofbusiness, for a judicial review of such standard.\u00a0 A copy of the petition shall beforthwith transmitted by the clerk of the court to the Secretary.\u00a0 The filing of suchpetition shall not, unless otherwise ordered by the court, operate as a stay of thestandard.\u00a0 The determinations of the Secretary shall be conclusive if supported bysubstantial evidence in the record considered as a whole.[[9\/]] Commissioners Cleary and Cottine join in this subpart (Part I C) ofthe Commission’s decision.\u00a0 Chairman Rowland’s views are stated in his separateopinion.[[10\/]] 29 C.F.R. ? 1910.1025(k)(1)(i) provides, in pertinent part:(k) Medical Removal Protection- (1) Temporary medical removal and return of an employee- (i) Temporary removal due to elevated blood lead levels -(A) First year of the standard.\u00a0 During the first year following the effective dateof the standard, the employer shall remove an employee from work having a daily eight hourTWA exposure to lead at or above 100 ug\/m3 on each occasion that a periodic and afollow-up blood sampling test conducted pursuant to this section indicate that theemployee’s blood lead level is at or above 80 ug\/100g of whole blood.The first year following the effective date of the standard is the relevanttime period in all of the consolidated cases before us.[[11\/]] 29 C.F.R. ? 1910.1025 (k)(1)(ii) provides, in pertinent part:(k) Medical Removal Protection-(1) Temporary medical removal and return of an employee-***(ii) Temporary removal due to a final medical determination.(A) The employer shall remove an employee from work having an exposure to lead at or abovethe action level on each occasion that a final medical determination results in a medicalfinding, determination, or opinion that the employee has a detected medical conditionwhich places the employee at increased risk of material impairment to health from exposureto lead.(B) For the purposes of this section, the phrase \”final medical determination\”shall mean the outcome of the multiple physician review mechanism or alternate medicaldetermination mechanism used pursuant to the medical surveillance provisions of thissection.For ease of reference, throughout this decision we refer to the determinationdescribed in ? 1910.1025(k)(1)(ii) as a \”physicians’ determination of a medicalcondition warranting removal.\”[[12\/]] 29 C.F.R. ? 1910.1025(k)(2)(vii) provides:(k) Medical Removal Protection -***(2) Medical removal protection benefits***(vii) Voluntary Removal or Restriction of An Employee. Where an employer, although not required by this reaction to do so, removes anemployee from exposure to lead or otherwise places limitations on an employee due to theeffects of lead exposure on the employee’s medical condition, the employer shall providemedical removal protection benefits to the employee equal to that required by paragraph(k)(2)(i) of this section.[[13\/]] 43 Fed. Reg. 54459.[[14\/]] 43 Fed. Reg. 54462.[[15\/]] 43 Fed. Reg. 54470.\u00a0 See also 29 C.F.R. ? 1910.1025, AppendicesB & C.[[16\/]] 43 Fed. Reg. 54469.[[17\/]] 43 Fed. Reg. 54470.[[18\/]] See ? 1910.1025(k)(1)(iii).\u00a0 For an employee removed due to ablood lead level at or above 80 ug\/100g — the relevant level at the time these casesarose – ? 1910.1025(k)(1)(iii)(A)(1) requires the employer to return the employee toformer job status when two consecutive blood sampling tests indicate that the employee’sblood lead level is at or below 60 ug\/100g of whole blood.[[19\/]] For example, in explaining the purpose of ? 1910.1025(k)(2)(vii),supra note 12, the Secretary stated:The purpose of this requirement is to preclude employers from evading the MRPprogram by voluntarily removing workers shortly before the standard would mandate removal.\u00a0 For example, absent some countervailing requirement, an employer could lay off ortransfer a worker having a blood lead level of 58 ug\/100g without providing any economicprotection.\u00a0 It is likely that some employers would do this in the expectation ofavoiding removal with MRP benefits when the worker’s blood lead level reached 60 ug\/100g.\u00a0 Even the Lead Industries Association openly predicts that employers will removeworkers from exposure before blood lead levels reach the standard’s removal trigger.[Citation omitted.]\u00a0 If employers can evade MRP with such ease, then MRP will play norole in effectuating meaningful worker participation in medical surveillance.\u00a0 Without the protection of a comprehensive MRP program, the level of workerprotection afforded by the standard will be reduced.\u00a0 MRP benefits must be providedso as to close this loophole.43 Fed. Reg. 54472[[20\/]] In establishing the 18-month temporary removal period the Secretarytook into consideration worker variation in lead retention and excretion rates, 43 Fed.Reg. 54468.\u00a0 Furthermore, the Secretary specifically rejected personal hygienepractices as a basis for denying MRP benefits. 43 Fed. Reg. 54472.[[21\/]] In light of our conclusion that the record does not establish theexistence of a legally sufficient determination that King was incapable of ever safelyreturning to his job, we need not resolve the dispute between the parties as to whetherthe determination was also inadequate because it was not a \”final medicaldetermination\” under the procedures set forth in the lead standard.\u00a0 See supranote 4 and accompanying text.[[22\/]] In Steelworkers, supra, the D.C. Circuit clearly recognized the18-month MRP period to be a minimum requirement when removal is based on lead retentionrates:[OSHA] offered both medical testimony and worker health statistics todemonstrate that workers needed removal protection for at least 18 months to allow thereversible phase of lead disease to subside and reduce their blood lead to safe levels.647 F.2d at 1238 (emphasis added).\u00a0 The court also noted that, if bloodlead levels do not decline to safe levels within 18 months, a longer period of removal maybe required.\u00a0 647 F.2d at 1230 & n.61.[[23\/]] Commissioners Cleary and Cottine join in this subpart (Part I D) ofthe Commission’s decision.\u00a0 Chairman Rowland’s views are stated in his separateopinion.[[24\/]] See also Intercounty Constr. Co. v. OSHRC, 522 F.2d 777, 780 (4thCir. 1975), cert. den., 423 U.S. 1072 (1976), where the Fourth Circuit wrote:The facts here indicate such a conscious, deliberate decision.\u00a0 Afterthe company was advised by OSHA that protective measures were necessary and had placed the\”mule\” in the trench to achieve compliance it intentionally removed the\”mule\” from the trench. Regardless of any good-faith belief that the work arearemained safe the fact is that the company knowingly chose not to comply with the OSHAregulations and requirements.\u00a0 That decision was a willful action in violation of thelaw.[[25\/]] In the partial stay granted by the D.C. Court of Appeals on March 1,1979, the court specifically stated,On consideration of the papers filed by the parties, and the discussions atconference, a partial stay of the standard will be ordered. The objective of the stay isto defer the requirements that employers undertake the expense of engineering controls,revision of work practices, and construction of facilities pending determination of theirchallenge to the standard.\u00a0 At the same time, the Court has concluded that portionsof the standard which will provide protection to employees during the pendency of judicialreview should go into effect, as set forth in the order.It is therefore ORDERED that ***(9) The motion to stay the application of 29 C.F.R. 1910.1025(k), medicalremoval protection, 29 C.F.R. 1910.1025(1), training programs, and 1910.1025(n),recordkeeping is denied.1979 CCH OSHD ? 23,338 at pp. 28,252-3.[[26\/]] The stated purposes of the MRP benefit provision are twofold:\u00a0 (1) to allocate to the lead industry the costs of temporary removal as a cost ofdoing business, and (2) to effect full employee participation by eliminating any economicdisincentive due to the feared loss of income, even though temporary.\u00a0 See 43 Fed.Reg. 54442-50.\u00a0 See also 29 C.F.R. ? 1910.1025, Appendix C.[[27\/]] Judge Fier is no longer a Commission administrative law judge.[[28\/]] See supra note 1. The two other items in the citation are discussedin Part II, Subparts C-E, infra.[[29\/]] The employment of each of these seven employees was terminated by RSRon November 19, 1979.\u00a0 All seven either had previously been or were, at the time oftheir termination, on temporary removal status.\u00a0 The allegations of violation appearto cover all periods of removal — whether temporary or permanent — of these sevenemployees following the March 1, 1979 effective date of the MRP regulation.[[30\/]] These 14 employees were placed on temporary removal status by RSR forvarying periods between March 1 and December 31, 1979.\u00a0 They did not come to theSecretary’s attention until April 1980, when they were named by RSR in response to theSecretary’s first set of interrogatories, long after the issuance of the citation in June1979.\u00a0 The allegations of violation appear to cover periods of temporary removalduring the last ten months of 1979.[[31\/]] See supra note 12.[[32\/]] Each of the 11 employees who were terminated on November 19, 1979(seven in Docket No. 79-3813 and four in Docket No. 80-1602) received the followingletter:It has been medically determined that you have low tolerance for continuedexposure to a lead environment.\u00a0 Extensive testing conducted by our physicians hasindicated that you have an unusual propensity to absorb certain amounts of lead into yourbloodstream and tissues.\u00a0 Thus, your blood lead levels tend to increase in adisproportionate fashion to those blood lead levels of other employees with similar orequivalent exposure.\u00a0 Moreover, it has been concluded that temporary removal fromyour working environment will not alleviate the problem permanently.\u00a0 Accordingly, wehave decided to remove you from lead exposure by terminating your employment as ofNovember 19, 1979.\u00a0 In reaching this decision, we have attempted to pursue a courseof action in the best interest any assistance in obtaining other employment, pleasecontact the personnel office at your convenience.[[33\/]] Commissioners Cleary and Cottine join in this subpart (Part II B) ofthe Commission’s decision.\u00a0 Chairman Rowland joins in the Commission’s affirmance ofJudge Blythe’s holding that RSR violated ? 1910.1025(k)(2)(i) or (vii) by failing to payMRP benefits to 21 employees in Docket No. 79-3813 during the periods of their temporaryremoval when RSR withheld the funds in an escrow account rather than paying them directlyto the employees.\u00a0 Chairman Rowland’s views on the remaining issues discussed in thissubpart are set forth in his separate opinion.[[34\/]] As indicated at note 32, supra, the employment of these elevenemployees was apparently terminated because of their \”unusual propensity to absorbcertain amounts of lead into [their] bloodstream and tissues.\”\u00a0 Therefore, thefollowing statements from the preamble to the lead standard (at 43 Fed. Reg. 54469) appearto be directly applicable here:…some long-term lead workers will excrete lead at an extremely slow rate,while other workers with comparable prior exposures will rapidly excrete lead uponremoval.\u00a0 OSHA is convinced that there is no possibility of determining in advancehow any particular worker will respond to a removal.\u00a0 At some point, however, itshould become clear to what extent the blood lead level of a removed worker is likely tosoon decline to acceptable levels.\u00a0 OSHA believes that at this point a medicaldetermination should be made as to the propriety of continuing the worker’s removal.\u00a0 With this in mind, the standard provides a medical examination for workers whoseblood lead levels have not adequately declined within 18 months of removal. . . . Thestandard does, however, embody the judgment that such medical determinations cannot bequickly made with respect to blood lead level declines.\u00a0 Little is firmly known aboutthe complicated dynamics of individual worker lead excretion.\u00a0 It would be prematureto attempt to quickly assess the nature of a specific long-term worker’s future blood leadlevel declines.\u00a0 The standard requires 18 months of removal before this medicaldetermination is attempted so that the nature of a specific worker’s excretion of lead hasbeen documented and thus can be evaluated without concern for such confounding factors asrecent substantial lead exposure.[[35\/]] 29 C.F.R. ? 1904.7(b)(1), Access to records, provides:(b)(1) The log and summary of all recordable occupational injuries andillnesses (OSHA No. 200) (the log) provided for in ? 1904.2 shall, upon request, be madeavailable by the employer to any employee, former employee, and to their representativesfor examination and copying in a reasonable manner and at reasonable times.\u00a0 Theemployee, former employee, and their representatives shall have access to the log for anyestablishment in which the employee is or has been employed.[[36\/]] At the time the citation was issued 29 C.F.R ? 1910.1025(n)(4)(ii)provided: (n) Recordkeeping-***(4) Availability.***(ii) Upon request, the employer shall make environmental monitoring, biologicalmonitoring, and medical removal records available to affected employees, former employeesor their authorized employee representatives for inspection and copying.This subsection has since been amended.\u00a0 See infra note 40.[[37\/]] Commissioners Cleary and Cottine join in this subpart (Part II D) ofthe Commission’s decision.\u00a0 Chairman Rowland’s views are stated in his separateopinion.[[38\/]] Chairman Rowland and Commissioner Cottine join in this subpart (PartII E) of the Commission’s decision.\u00a0 Commissioner Cleary’s views are stated infra atnote 41.[[39\/]] See supra note 36.[[40\/]] As amended, effective August 21, 1980, section 1910.1025(n)(4)(ii)provides: (n) Recordkeeping-***(4) Availability.***(ii) Environmental monitoring, medical removal, and medical records required bythis paragraph shall be provided upon request to employees, designated representatives,and the Assistant Secretary in accordance with 29 C.F.R. 1910.20 (a)-(e) and (2)-(i).Medical removal records shall be provided in the same manner as environmental monitoringrecords.(Emphasis added).[[41\/]] Commissioner Cleary dissents from the holding that RSR’s violation 29C.F.R. ? 1910.1025(n)(4)(ii) was not willful.\u00a0 The employee representative, Jackson,submitted a written request for the monitoring data in April of 1979, long before the datahad been supplied to employees (it is not shown that the data was ever requested byemployees).\u00a0 RSR’s response at that time was that Jackson must supply releases fromemployees.\u00a0 Yet, in subsequent argument, RSR has maintained its action was based onits understanding of the regulation, that either the union or employees, but not both,were entitled to the data.\u00a0 Even assuming a misinterpretation by RSR, it would thenhave to assume it was proper for RSR to select which one was to be furnished the data.\u00a0 But the data was never requested by the employees as required by the standard,supra note 36.\u00a0 RSR has no right to elect to furnish employees the data, thoughunrequested, and then deny the data to the union which had requested it.RSR’s defenses are inconsistent with each other, and in Commissioner Cleary’sopinion, its argument before the Commission, that the standard was ambiguous, isuntenable.\u00a0 The standard simply said that upon request employees, former employees,or the union could obtain materials.\u00a0 This could not reasonably be read to mean thatany one group could obtain the data to the exclusionof the other two, and that RSR could determine which was to receive it.\u00a0 Moreover,the change in the standard, supra note 40, only served to add the Assistant Secretary as arecipient of the data if he so elects.\u00a0 In addition, Commissioner Cleary concludesthat this refusal is part of a pattern of evasion of the standard.[[42\/]] Commissioner Cottine notes that each employee in this case is exposedto unique risk associated with personal participation in the medical surveillance programand distinctly personal harm when medically removed without the attendant protectionafforded by the standard.\u00a0 Commissioner Cleary avoids the unique risk and harmsuffered by these individual employees by simply consolidating the number of uniqueviolations into a single generalized penalty assessment under section 17(j) of the Act, 29U.S.C. ? 666(i).\u00a0 As a result, the individual employee who has personally sufferedthe consequences of the employer’s violation of the Act is reduced to no more than afraction of a single violation.[[43\/]] Commissioner Cleary is unaware of any case in which the Secretary hasissued separate citations and proposed separate penalties for each employee harmed(actually or potentially) by an employer’s noncompliance with a single standard.\u00a0 Commissioner Cleary would point out that neither Pratt & Whitney Aircraft,supra, nor Hoffman Constr. Co., supra, cited by Commissioner Cottine in support of theSecretary’s discretionary powers, involved separate penalties for each employee.\u00a0 InHoffman Constr. Co., the Secretary issued separate citations for each scaffold which wasnot in compliance with a guardrail standard.\u00a0 In Pratt & Whitney Aircraft, theadministrative law Judge, acting sua sponte, assessed separate penalties for each electricpanel box which had not been appropriately locked.\u00a0 In neither case did the Secretarypropose separate penalties for each employee harmed or potentially harmed by the violativeconditions. More importantly, in both cases the Review Commission exercised its authorityas final arbiter of penalties by assessing only one penalty per standard violated.[[44\/]] Commissioner Cleary notes that in Docket No. 79-3813, the citationoriginally charged RSR with an other than serious violation of ? 1910.1025(k)(2)(i) andproposed no penalty.\u00a0 The complaint which followed amended the citation to charge awillful violation and to propose a penalty of $3,000 for the ? 1910.1025(k)(2)(i) item.\u00a0 The Secretary explained at that time that his reason for upgrading the violationfrom other than serious to willful was that he had learned that RSR was involved in theindustry challenge to the lead standard before the D.C. Circuit and therefore had actualknowledge of the requirements of the standard.\u00a0 The complaint was subsequentlyfurther amended to allege separate violations with separate penalties for each employeeharmed by RSR’s medical removal policies after the Secretary learned, through discovery,the identities of the individual employees involved.Although RSR’s involvement in the D.C. Circuit proceedings may justify the Secretary’supgrading of the charge to willful, it does not explain the Secretary’s amendment from asingle violation of ? 1910.1025(k)(2)(vii) or 1910.1025(k)(2)(i) to separate violationsbased on the number of employees involved.\u00a0 (Commissioner Cleary also notes that theSecretary has not been consistent in seeking separate violations for each employeeinvolved in a MRP violation.\u00a0 In the Indiana case, discussed infra (Docket No.79-5062), the complaint alleges only one violation and seeks only one penalty even thoughat least six employees were harmed by the violation.)[[45\/]] 29 C.F.R. ? 1910.1025(k)(2)(iv) provides:(k) Medical Removal Protection -* * *(2) Medical removal protection benefits -* * *(iv) Workers’ compensation claims.\u00a0 If a removed employee files a claim for workers’compensation payments for a lead-related disability, then the employer shall continue toprovide medical removal protection benefits pending disposition of the claim.\u00a0 To theextent that an award is made to the employee for earnings lost during the period ofremoval, the employer’s medical removal protection obligation shall be reduced by suchamount.\u00a0 The employer shall receive no credit for workers’ compensation paymentsreceived by the employee for treatment related expenses.[[46\/]] Commissioners Cleary and Cottine join in this subpart (Part III B) ofthe Commission’s decision.\u00a0 Chairman Rowland’s views are stated in his separateopinion.[[47\/]] Chairman Rowland and Commissioner Clearly join in this subpart (PartIII C) of the Commission’s decision.\u00a0 Commissioner Cottine’s views are stated infraat note 48.[[48\/]] Commissioner Cottine dissents from the Commission’s decision tovacate the citation for serious violation of 29 C.F.R. ? 1910.1025(k)(1)(i).\u00a0 In hisview, the judge properly concluded, based on the totality of the evidence, that Gray’semployment status remained unchanged following the May 21, 1979 monitoring.\u00a0 Thespecial project crew was established by RSR for the verypurpose of reassigning and relocating employees with elevated blood lead levels.\u00a0 Gray was already removed once from his regular work assignment and was placed onthe special project crew.\u00a0 There is nothing to indicate that his status was changedor that there was any other crew to which he could be reassigned.\u00a0 Employees who weretemporarily removed were the subject of another citation in this case. Gray was not amongthem.Furthermore, RSR has not challenged the judge’s finding in this regard.\u00a0 RSR’s soleobjection relates to the accuracy of the air sampling results.\u00a0 In fact, by arguingthat \”the evidence reflects a possible violation\” (Respondent’s brief at 10)when a confidence limit is applied to its monitoring results, RSR has essentially concededthe fact that the majority refuses to find.[[49\/]] For the reasons stated in Part II F of the Commission’s decision, supra,Commissioners Cleary and Cottine do not agree on an appropriate penalty for RSR’s willfulviolation of the standards at 29 C.F.R. ?? 1910.1025(k)(2)(i) and (iv).\u00a0 Commissioner Cleary notes that penalties of $1,000 each have been assessed for thewillful MRP violations at issue in Docket Nos. 79-6392, 79-3813 and 80-1602.\u00a0 To beconsistent, Commissioner Cleary would also assess a penalty of $1,000 for the willful MRPviolations at issue in this case, Docket No. 79-5062.\u00a0 As indicated previously,Commissioner Cleary does not agree that the penalties in these cases should be based onthe number of employees who were denied MRP benefits.\u00a0 However, Commissioner Cottinehas concluded that a reasonable and appropriate penalty in these cases would be a percapita penalty of $1,000 for each employee who was denied MRP benefits.\u00a0 Therefore,he agrees with Judge Abels’ assessment of a $6,000 penalty for the willful violation here,involving RSR’s failure to pay MRP benefits to six employees at the Indianapolis plant.Because the Commission members who join in affirming willful violations are divided on theappropriate penalties, they agree to affirm the judge’s assessment.\u00a0 See Marshall v.Sun Petroleum Products Co., 622 F.2d 1176 (3d Cir. 1980), cert. denied, 449 U.S. 1061(1982); United States Steel Corp., supra.[[50\/]] Judge Abels is no longer a Commission administrative law judge.”