“Docket No. 81-2267 SECRETARY OF LABOR, Complainant, v. ST. JOE RESOURCES COMPANY, Respondent. UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, and its LOCAL UNION 8183, Authorized Employee Representative.OSHRC DOCKET NO. 81-2267ORDERThis case is before the Commission on remand from theUnited States Court of Appeals for the Fifth Circuit, the second time this case has beento the Court of Appeals. United Steelworkers v. St. Joe Resources Co., 916 F.2d 294(5th Cir. 1990). The court has remanded the case for the Commission to determine theamounts of back pay due St. Joe Resources Company employees who, because they had elevatedlevels of lead in their blood, were transferred to other jobs with less exposure to lead,as required by the OSHA standard governing exposure to lead.The Secretary of Labor had cited St. Joe ResourcesCompany for violating the occupational safety and health standard at 29 C.F.R. ?1910.1025(k)(2),[[1\/]] which requires that employees removed from their positions tolower-exposure jobs must maintain the earnings, rights and benefits they received beforethey were transferred. In its first opinion in this case, the Court of Appeals concludedthat \”earnings\” included not only base pay but also such premium payments aspaid lunch periods, overtime pay, production bonuses, and shift differentials forscheduled night and evening work. United Steelworkers v. Schuylkill Metals, 828F.2d 314, 320 (5th Cir. 1987). On remand, the two-member Review Commission voted to vacatethe order of the administrative law judge, but the commissioners split on the dispositionof the case. One of the commissioners was of the opinion that the Review Commission couldorder the employer to pay back pay. The other held the opinion that, under theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678, the Review Commissionhad no such power.In its second decision in this case, the Court ofAppeals has concluded that the Review Commission does have the power to order back pay.The court therefore remanded the case for the Commission to determine the amounts of backpay owed to the employees identified in the citations issued to St. Joe Resources.We, in turn, remand this case for an administrativelaw judge to make the necessary findings of fact and enter an order requiring payment ofback pay, as directed by the court. If it is necessary to do so, the judge may reopen therecord to take evidence on this question.Accordingly, this case is remanded to the ChiefAdministrative Law Judge for assignment and for further proceedings consistent with thisorder.Edwin G. Foulke, Jr.ChairmanVelma Montoya CommissionerDonald G. Wiseman CommissionerDated: December 4, 1990SECRETARY OF LABOR, Complainant, v. ST. JOE RESOURCES COMPANY, Respondent. UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, and its LOCAL UNION 8183, Authorized Employee Representative.OSHRC DOCKET No. 81-2267DECISIONBefore: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:This case involves the medical removal protection(\”MRP\”) provision of the OSHA standard regulating occupational exposure to lead.That provision, 29 C.F.R. ? 1910.1025(k)(2),[[1\/]] requires employers to \”maintainthe earnings, seniority, and other employment rights and benefits\” of employees theyremove from lead exposure because the employees are at particular risk of sufferinglead-related diseases.[[2\/]] The case is before the Commission for the second time. In thefirst decision, the commission concluded that St. Joe Resources Company (\”St.Joe\”) did not violate the standard by failing to include overtime compensation andshift differential payments in the amounts it paid to an employee under theprovision.[[3\/]] Amax Lead Co. of Missouri, 12 BNA OSHC 1878, 1986-87 CCH OSHD ?27,629 (No. 80-1793, 1986). That decision was reversed by the Fifth Circuit, which saidthat the standard was \”intended to include within ‘earnings’ precisely the kind ofpremium payments at issue here.\” United Steelworkers of America v. SchuylkillMetals Corp., 828 F.2d 314, 321 (5th Cir. 1987). The court remanded \”for furtherproceedings attuned to this opinion\”. Id. at 323.IOur first decision set forth the relevant facts, andwe will only briefly summarize them here. An employee at St. Joe’s zinc smelter wasremoved from his position as \”weighman\” because of an elevated blood lead leveland was transferred to a position as laborer, a job that did not expose him to excessivelead. During the removal period, he worked 40 hours per week and was paid at the basehourly rate he would have received as a weighman. However, had he remained a weighman, theemployee would have worked a certain number of hours of overtime under a scheduleincorporated in St. Joe’s collective bargaining agreement with the United Steelworkers ofAmerica. The employee would also have received additional payments (\”shiftdifferentials\”) for scheduled evening and night work. Also, while employed as aweighman, the employee had been given the opportunity to work additional hours of overtimebeyond those scheduled, and during his 16 weeks in that position, he had worked 45 hoursof such voluntary overtime. Thus, the employee’s weekly pay during the removal period wasless than he would have received if he had remained a weighman.The Fifth Circuit held that the lead standard’smedical removal protection provision requires an employer to assure that a removedemployee does not suffer economic loss. Under that interpretation, St. Joe was required topay its employee at least the scheduled overtime compensation and shift differentialpayments he would have earned if not removed.[[4\/]] Accordingly, St. Joe failed to complywith the standard.[[5\/]]II St. Joe argues that the medical removal protectionprovision of the lead standard was invalidly promulgated because the Secretary of Laborlacked the authority to adopt such a requirement. The Commission members both reject St.Joe’s argument, but for different reasons.Chairman Buckley believes that Commissionconsideration of the argument is foreclosed by the Fifth Circuit’s remand order. Theargument raised by St. Joe was considered and rejected by the D.C. Circuit in apre-enforcement challenge to the standard. United Steelworkers of America, AFL-CIO-CLCv. Marshall, 647 F.2d 1189, 1230 (D.C. Cir. 1980), cert. denied, 453U.S. 913 (1981). In remanding the case. to us, the Fifth Circuit noted that its sistercircuit had upheld the standard’s validity and said:The lead standard has been challenged by the industryin litigation from its inception. The courts, however, have not proved a receptiveaudience for the industry’s well-orchestrated complaints. The present movement in thisseemingly never ending symphony is but a minor variation on the prior themes. Thus, unlikea listener to Haydn, the industry should hardly be surprised at the outcome.This symphony of lead litigation should not remainforever unfinished. The industry’s arguments — in large measure resting on the policiesunderlying the lead standard-likely will continue to strike a discordant note in thecourts. The industry must either accept legislative and regulatory atonality, or, if toopainful for the ears (and pocketbooks) attempt to return the score to the composers of thelead policy for reorchestration.828 F.2d at 315-16. In Chairman Buckley’s view, thislanguage demonstrates that the Fifth Circuit considered the validity of the standard to bean established fact, at least for purposes of this case. Chairman Buckley thereforeconcludes that the court’s remand order precludes the Commission from ruling on thevalidity argument raised by St. Joe.Commissioner Arey does not believe that the FifthCircuit’s decision precludes consideration of the issue. She notes that the validityargument was not raised before the court, and believes that the court’s decision cannot beconsidered a definitive ruling on an issue it did not explicitly consider. CommissionerArey would therefore consider St. Joe’s validity argument, and would reject it on itsmerits.[[6\/]]St. Joe’s argument contains several prongs. Thecompany first argues that the Act only authorizes the Secretary to issue standards toprotect employee safety and health, and the MRP provision does not meet this criterionbecause it \”does not prevent employee illnesses or biological changes in their bodiesresulting from exposure to inorganic lead.\” Instead, St. Joe contends, the MRPprovision is like a workers’ compensation scheme, requiring payments for biologicalchanges to workers’ bodies that have already occurred.It is true that the Secretary only has the authorityto issue standards that promote workplace safety and health. American TextileManufacturers Institute v. Donovan, 452 U.S. 490, 540 101 S.Ct. 2478, 2506 (1981). InCommissioner Arey’s view, however, it is abundantly clear that the medical removalprotection provisions of the lead standard, including the requirement for the payment ofmedical removal protection benefits, fulfill this purpose. The standard limits the amountof lead employees inhale and ingest by establishing a permissible exposure limit forairborne lead and through other provisions that prevent exposure to lead. However, duringthe rulemaking proceedings, the Secretary found that some employees would still haveexcessive blood lead levels even if those limits were met. 43 Fed. Reg. 52952, 52963 (Nov.14, 1978). The Secretary was concerned that these employees, as well as employees who hadmedical conditions that would be aggravated by exposure to lead, would have their healthendangered if they remained in jobs where they would be exposed to significant amounts oflead. Therefore, the Secretary adopted the MRP provision, requiring that such employees beremoved from jobs involving high levels of lead exposure, as a \”fall-back mechanismto protect individual workers in circumstances where other protective mechanisms wereinsufficient.\” 43 Fed. Reg. at 52973.In order to determine whether an employee’s healthwould be endangered by continued exposure to lead, it is necessary to measure theemployee’s blood lead level and to rely on the employee to disclose other medicalconditions that could lead to medical removal. However, the Secretary found that employeesfaced with the potential loss of their income if they cooperate with medical surveillancewill often withhold such cooperation, thereby sacrificing their health for theirpaycheck.[[7\/]] 43 Fed. Reg. 54354, 54422 (Nov 21, 1978). The requirement for payment ofMRP benefits was therefore included in the standard to eliminate the likelihood thatemployees would endanger their physical health to assure their economic health. SeeEast Penn Manufacturing Co., OSHRC Docket No. 87-537 (Apr. 27, 1989) (Arey,concurring).Commissioner Arey believes that the Secretary’srulemaking findings, based as they were on an extensive rulemaking record, are entitled todeference. Id. at n. 5. Moreover, she notes that those findings are supported by commonsense. The vast majority of employees, particularly those in the types of industrial jobsthat involve exposure to lead, can ill afford to be removed from their jobs if this willresult in the loss, or even a decrease, in their paychecks. Commissioner Arey thereforeconcludes that the requirement for payment of MRP benefits is directly related to theprotection of employee health, and she rejects St. Joe’s contrary argument.St. Joe also contends that Congress specificallyintended to withhold from the Secretary the authority to require employers to pay MRPbenefits. The company’s arguments in support of this claim are the same arguments thatwere specifically considered and rejected by the D.C. Circuit, and Commissioner Arey wouldreject these arguments for the reasons given by the court. United Steelworkers ofAmerica v. Marshall, 647 F.2d at 1232-36. IIISt. Joe also argues that the citation should bevacated because the Secretary did not show that abatement of the violation will reduce asignificant risk of harm. St. Joe points out that the purpose of the medical removalprotection provision is to induce employees to cooperate with the lead standard’s medicalsurveillance provisions, and particularly to consent to blood testing.[[8\/]] St. Joe,however, required its employees to undergo medical surveillance. Failure tocooperate with medical surveillance would subject an employee to discipline, up to andincluding discharge. Therefore, according to the company, the standard’s purpose wasachieved in its workplace, and there was no significant risk that the health of itsemployees would be endangered by its failure to pay MRP benefits. St. Joe relies on Pratt& Whitney Aircraft v. Secretary of Labor, 649 F.2d 96 (2d Cir. 1981), for theproposition that the Secretary must \”demonstrate that abatement will reduce asignificant risk of harm.\”To prove that an employer violated an OSHA standard,the Secretary must establish (1) the applicability of the standard; (2) the employer’snoncompliance with the standard; (3) employee exposure or access to the violativecondition; and (4) that the employer knew or with reasonable diligence could have known ofthe violative condition. See Dun-Par Engineered Form Co., 12 BNA OSHC 1949,1952, 1986-87 CCH OSHD ? 27,650 at p. 36,019 (No. 79-2553, 1986), rev’d on othergrounds, 843 F.2d 1135 (8th Cir. 1988). St. Joe argues that the Secretary should bearan additional burden by being required to prove that the violation creates a significantrisk of harm to employees. While that burden exists in some cases, this is not such acase.Some OSHA standards, by their terms, only require anemployer to take corrective action where a \”hazard\” or \”danger\”exists. For such standards, the Secretary must show that employees are subjected to asignificant risk of harm in order to prove that a hazard exists. Pratt & WhitneyAircraft v. Donovan, 715 F.2d 57, 63-64 (2d Cir. 1983);[[9\/]] Donovan v. GeneralMotors Corp., 764 F.2d 32, 35-36 (1st Cir. 1985); Kastalon, Inc., 12 BNA OSHC1928, 1937-38, 1986, CCH OSHD ? 27,643, p. 35,980 (No. 79-3561, 1986). However, astandard that does not condition the employer’s obligation to take corrective action onthe existence of a hazard presumes that a hazard exists if the standard’s terms are notmet. The Secretary need not prove that an employer’s violation of such a standard exposesemployees to a significant risk of harm. Modern Drop Forge Co. v. Secretary of Labor, 683F.2d 1105, 1114-15 (7th Cir. 1982); Bunge Corp. v. Secretary of Labor, 638 F.2d831, 834 (5th Cir. 1981). Cf. Pratt & Whitney Aircraft v. Donovan, 715F.2d at 63-64 (discussing distinction between standards that presume the existence of ahazard and those that do not).The medical removal protection provision does notcondition an employer’s responsibility to pay MRP benefits on proof that employees will besubjected to a hazard if the payments are not made. The Secretary therefore need not provethat the employer’s failure to make MRP payments exposes employees to a significant riskof harm. The Secretary met her burden of proof, and we conclude that St. Joe violated thestandard.St. Joe also argues that its policy of requiringemployees to cooperate with medical surveillance, by eliminating the hazard against whichthe standard is directed, renders the violation de minimis. A violation is deminimis when there is technical noncompliance with a standard, but the departurebears such a negligible relationship to employee safety or health as to renderinappropriate the assessment of a penalty or the entry of an abatement order. ClevelandConsolidated, Inc., 13 BNA OSHC 1114, 1118, 1986-87 CCH OSHD ? 27,829, p. 36,429 (No.84-696, 1987). St. Joe argues that the step it has taken to assure employee cooperationwith medical surveillance–mandating such cooperation under threat of discipline–is aseffective as the means required by the standard: payment of MRP benefits. Therefore,according to the company, it has eliminated the hazard addressed by the standard, and itsfailure to pay full MRP benefits bears no relationship to employee safety or health.St. Joe’s argument must be rejected because itquestions the wisdom of the standard. In promulgating the lead standard, the Secretaryrejected the suggestion that the standard should require that employees cooperate withmedical surveillance. Instead, the Secretary chose to encourage such cooperation byproviding for medical removal protection benefits. The de minimisclassification cannot be used to override the Secretary’s rulemaking decision. GeneralCarbon Co. v. OSHRC, 860 F.2d 479, 487 (D.C. Cir. 1988). Therefore, even if we werepersuaded that St. Joe’s substitute for MRP benefits would be equally effective inproviding a safe and healthful workplace, we would not find the violation de minimis.We note, however, that there is another flaw in St.Joe’s argument. St. Joe assumes that mandating employee cooperation with the standard’smedical surveillance provisions will fully accomplish the objective of the medical removalprotection provision. However, the Secretary had an additional concern when he adopted theMRP standard. Certain types of drugs, called chelating drugs, remove lead from thebloodstream but have harmful side effects. The Secretary was concerned that mandatoryblood tests would induce employees to resort to chelating drugs to reduce their blood leadlevels if high blood lead levels could lead to loss of income, thereby exposing theemployees to the adverse health effects the drugs can cause.[[10\/]] The requirement thatemployers pay medical removal protection benefits was not only intended to induce employeecooperation with medical surveillance, but also to eliminate any reason for employees touse chelating drugs to reduce their blood lead levels. An employer policy mandatingemployee cooperation with medical surveillance might induce employees to endanger theirhealth by using chelating drugs and would therefore not protect employee health as well asthe payment of MRP benefits.IV The administrative law judge found that the violationwas properly classified as serious. We agree. The serious health hazard presented bymetallic lead is well established. The MRP benefits provision attacks this hazard byremoving barriers to complete employee cooperation with medical surveillance. It seeks toprotect the employees who face the gravest risk of serious lead-related disease: those whohave high blood lead levels and those who have other medical conditions that would placethem at particular risk should they continue to be exposed to lead in the workplace. Thestandard also seeks to protect employees by eliminating the possibility that they will usechelating drugs to reduce their blood lead levels and thereby expose themselves to theserious health risks such drugs can cause.A violation that could result in serious damage to the health of employees is properlyclassified as serious. Phelps Dodge Corp., 83 OSAHRC 29\/A2, 11 BNA OSHC 1441,1448-49, 1983 CCH OSHD ? 26,552, p. 33,925 (No. 80-3203, 1983), aff’d, 725 F.2d1237 (9th Cir. 1984). The MRP standard is designed to protect particularly susceptibleemployees against the serious health risk presented by workplace lead exposure, as well asavoid serious health risks from the use of chelating drugs. Since the potential forserious harm exists whenever the MRP standard is violated, we conclude that St. Joe’sviolation of the standard was serious.[[11\/]]The Secretary proposed, and the judge assessed, apenalty of $60. Although the violation was serious, St. Joe exhibited good faith inimplementing a medical surveillance program and in making those MRP benefit payments itbelieved were due under its reasonable but erroneous interpretation of the standard’srequirements. We conclude that a penalty of $60 is appropriate. V Normally, an order affirming a citation andestablishing a penalty assessment would be sufficient to dispose of the case. However,there is one additional contention that we must address. The Secretary and the Union arguethat the Commission should issue an order requiring St. Joe to pay the removed employeethe specific amounts that were due him but not paid. St. Joe contends that the Commissionlacks the authority to issue such an order. St. Joe also argues that 29 U.S.C. ? 659(b)[[12\/]] tolls any requirement for abatement while a contest is pending before theCommission, and that this provision means that any duty it has to pay overtimecompensation and shift differential payments under the MRP standard cannot applyretroactively to require it to make the payments withheld in this case.The Commission members are divided on the proprietyof such an order. While Chairman Buckley is of the view that the employees who failed toreceive full \”earnings\”, as that term has been interpreted by the Fifth Circuit,are entitled to be paid retroactively for the period of time that they failed to receivefull earnings, he is also of the view that the Review Commission is without authority tomake individual compensatory awards to those employees. Under the Occupational Safety andHealth Act (29 U.S.C. 651 et seq.), the Secretary is authorized to issue citations toemployers alleged to have violated the Act or any standard, rule or regulation promulgatedpursuant to the Act. The citation is required to specify the violation with particularity,and to prescribe a reasonable time for abatement. The Secretary must also notify theemployer of any penalty proposed to be assessed. That Act also created the OccupationalSafety and Health Review Commission and authorized it to hear cases brought before itinvolving safety and health violations, and to affirm, modify, or vacate the Secretary’scitation or proposed penalty, or to direct \”other appropriate relief\”. 29 U.S.C.? 659(c). The determination of the amount of pay to be awarded to an employee, and anorder providing for individual compensatory relief to an employee, is clearly not theassessment of a civil penalty (which would be paid into the Treasury of the United States). Nor is it an \”abatement\” as used in the Act, which he would define as thoseactions required to terminate the violative condition. In this case, the failure to payfull \”earnings\” would be abated by the commencement to pay them. Nor does theawarding of individual compensatory relief to individual workers retroactively forearnings which they failed to receive constitute \”other appropriaterelief\”.[[13\/]] The ordering of back pay is not necessary as an abatement measure tothe termination of the violative condition. In Chairman Buckley’s opinion, the Commissionis without authority to make individual compensatory awards unless expressly so authorizedby Congress (as Congress has done, for example, in the case of awards of attorney’s feesand costs under the Equal Access to Justice Act).Chairman Buckley emphasizes that the Commission’slack of authority to issue backpay orders to compensate employees who failed to receivefull earnings does not leave the employees without a remedy. If the employers fail tocompensate them fully and retroactively, there are forums authorized to resolve suchdisputes. Chairman Buckley’s views on the Commission’s lack of authority to issue awardsof back pay should not be read as accepting St. Joe’s argument that employees are notentitled to retroactive pay, only that the Commission is not the forum to award such pay.He agrees with Commissioner Arey that employees removed under the medical removalprotection standard are entitled to continue to receive the full amount of remunerationthat they were receiving before removal, whether that be contractual or voluntary overtimepay, paid lunch time, or other pay differentials. He stops short of agreeing to considerwhat those amounts are as to each individual employee, or whether they also are entitledto interest on the unpaid earnings.Commissioner Arey would issue an order requiring St.Joe to pay the amounts it improperly withheld under the terms of the medical removalprotection standard. She believes that the Commission has the authority to issue this typeof order and that such an order is appropriate in this case to resolve the disputed issuesbetween the parties concerning what St. Joe must do to abate the violation. St. Joe arguesthat it need not pay past-due amounts; the Secretary and the Union argue otherwise. Theparties also dispute whether St. Joe is required to make payments for voluntary overtime,in addition to the payment for scheduled overtime and shift differential payments.Commissioner Arey believes that the Commission, which sits to resolve disputes that ariseunder the Secretary’s standards, can and should decide the issues presented by theparties. If those issues remain unresolved, the uncertainty over St. Joe’s abatementobligation will continue and could result in the issuance of a failure-to-abatenotification if St. Joe does not pay the amounts the Secretary believes are due.Commissioner Arey believes it would be preferable to define St. Joe’s obligation now andeliminate the need for a potential failure-to-abate proceeding.Commissioner Arey would reject St. Joe’s argumentthat 29 U.S.C. ? 659(b) relieves it of responsibility for paying past-due amounts.Section 659(b) provides that the abatement period does not begin to run in this case untilthe Commission enters a final order.[[14\/]] St. Joe contends that the meaning of thisstatutory provision is that it is only required to make MRP benefit payments for medicalremovals that occur after the date of the Commission’s final order. However, the Secretaryand the Union argue that the tolling provision controls only the timing ofabatement, not the requirement of abatement, and that abatement of the violationrequires St. Joe to pay the amounts it withheld from the employee whose removal led tothis case.Commissioner Arey believes that the Secretary and theUnion are correct. The specific violation alleged and proved in this case was St. Joe’sfailure to make MRP benefit payments to a single employee, Simpson Butler, during theperiod of his medical removal. Butler was removed from his old job as a weighman on orabout July 17, 1981, and he was still in removal status when the citation was issued onSeptember 11, 1981. That citation ordered St. Joe to abate the violation on or beforeSeptember 29, 1981, that is, eighteen days after the citation’s issuance. In commissionerArey’s view, the abatement required under the citation was, and is, payment to Butler ofthe benefits that were improperly withheld from him for the work he would have performedas a weighman between July 17 and September 11, 1981, if he had not been medically removedfrom that position. Only by making these specific payments can St. Joe abate the violationthat has been alleged and proved in this case. The effect of section 659(b) and St. Joe’snotice of contest has been to toll this abatement requirement during the pendency ofproceedings before the Commission and its judge. Once the Commission issues its finalorder, however, St. Joe’s duty to abate will be reinstated. This means that St. Joe willthen have the same period specified in the citation (eighteen days) to abate the violationby compensating Butler for the MRP benefits it improperly withheld from him for the workhe would have performed between July 17 and September 11, 1981.Abatement of occupational safety and healthviolations can require the expenditure of considerable resources by employers. The tollingprovision in section 659(b) permits employers to obtain a Commission ruling on whethersuch expenditures are in fact required by the Act before the employers must make them. Butsection 659(b) does not mean that an employer can avoid entirely the need to makeexpenditures required by a standard. Commissioner Arey therefore concludes that, once theCommission issues a final order, St. Joe must pay the amounts it improperly withheld.Commissioner Arey would also hold that St. Joe is notonly required to pay the removed employee for improperly withheld scheduled overtime andshift differential payments, as found by the administrative law Judge, but is alsorequired to compensate him for improperly withheld voluntary overtime payments. In herview, the standard generally requires the employer to pay a removed employee the sametotal amount after removal as before or, in other words, to make the employee whole. EastPenn Manufacturing Co., OSHRC Docket No. 87-537 (Apr. 27, 1989) (concurring opinion).Although St. Joe’s employee had the right to refuse voluntary overtime, he had a historyof accepting it. Based on this past history and records of the amount of voluntaryovertime that was available during the period of his medical removal, the Commission couldmake a reasonably reliable estimate of the amount of voluntary overtime Butler would haveearned if he had not been removed. Accordingly, the judge erred in failing to compensatethe employee for improperly withheld voluntary overtime payments based on his conclusionthat these payments were too speculative to be included in his backpay order.Official action can only be taken on the affirmativevote of at least two Commission members. 29 U.S.C. ? 661(f). The Commission members bothagree to affirm the serious citation and assess a penalty of $60. They are divided on thepropriety of a \”backpay\” order, and therefore cannot issue such an order.[[15\/]]Accordingly, the citation alleging a seriousviolation of 29 C.F.R. ? 1910.1025(k)(2) is affirmed. A penalty of $60 is assessed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: April 27, 1989\u00a0\u00a0\u00a0SECRETARY OF LABOR, Complainant, v. AMAX LEAD COMPANY OF MISSOURI, Respondent. UNITED STEELWORKERS OF AMERICA, AFL-CIO and LOCAL 7447-J, Authorized Employee Representative.OSHRC Docket No. 80-1793SECRETARY OF LABOR, Complainant, v. SCHUYLKILL METALS CORPORATION, Respondent.UNITED STEELWORKERS OF AMERICA, AFL-CIO and LOCAL 8394, Authorized Employee Representative.OSHRC Docket No. 81-0856SECRETARY OF LABOR, Complainant, v. ST. JOE RESOURCES COMPANY, Respondent.UNITED STEELWORKERS OF AMERICA, AFL-CIO and LOCAL 8183, Authorized Employee Representative.OSHRC Docket No. 81-2267DECISIONBEFORE: BUCKLEY, Chairman, RADER and WALL,Commissioners.BUCKLEY, Chairman:These consolidated cases[[1]] are before the Occupational Safety and Health ReviewCommission under 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration (\”OSHA\”). It was established to resolve disputesarising out of enforcement actions brought by the Secretary of Labor under the Act and hasno regulatory functions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).These cases involve the interpretation of the medicalremoval protection benefits (\”MRP benefits\”) provision of the standard at 29C.F.R. ? 1910.1025, which regulates occupational exposure to lead. The lead standardprimarily seeks to protect workers from the adverse effects of lead on their health bylimiting the amount of lead they inhale and ingest. The MRP provision is a\”backup\” requirement that is intended to protect employees who are notadequately protected by the other provisions of the standard. If an employee’s blood leadlevel exceeds certain limits or if the employee would otherwise experience certain risksto his health from continued lead exposure, the standard requires the employer to removethe employee from excessive lead exposure. For an employee transferred under thisrequirement, the MRP benefits provision requires the employer to \”maintain theearnings, seniority and other employment rights and benefits of an employee as though theemployee had not been removed . . . . \” 29 C.F.R. ? 1910.1025(k)(2)(ii). In thesecases, Amax Lead Company of Missouri, Schuylkill Metals Corporation, and St. Joe ResourcesCompany transferred certain employees who had elevated blood lead levels from jobs withhigh lead exposures to positions outside high lead areas. The employers paid thetransferred employees their regular wage rate for the 40-hour weeks the employees workedduring the periods of transfer. The Secretary of Labor alleges that the employers violatedthe MRP benefits provision by not paying the transferred employees for potential overtime,production bonuses, shift differentials, and paid lunch periods that were incidents of thejobs they held before their transfers but not of the jobs to which they were transferred.We conclude that the employers complied with the standard by paying the employees theirregular wage rate for a 40-hour week, and we therefore vacate the citations.IIt has long been known that lead is highly toxic tohumans. Lead that is inhaled or ingested enters a person’s bloodstream, where it iscarried to the various organs throughout the body. In excessive amounts, lead can damagevital organs, notably the kidneys, the reproductive system, and the central nervoussystem.Before 1975, an OSHA standard limited the amount ofairborne lead to which an employee could be exposed to 200 micrograms per cubic meter ofair (\”?g\/m3\”) averaged over an 8-hour day.[[2]] In 1975, theSecretary of Labor, believing the existing standard was not sufficiently protective,proposed a new standard that would both lower the permissible exposure limit and adopt anumber of other provisions intended to protect lead-exposed employees. 40 Fed. Reg. 45934(Oct. 3, 1975). Following lengthy rulemaking proceedings, the Secretary promulgated thestandard here at issue. 43 Fed. Reg. 52952 (Nov. 14, 1978).[[3]]Because lead reaches vital organs through thebloodstream, much of the Secretary’s rulemaking effort focused on controlling the amountof lead in workers’ blood. The secretary first attempted to determine the maximumconcentration of lead in the blood that would not produce material impairment of workers’health. He found that serious lead poisoning occurs at blood lead levels of 80 microgramsper 100 grams of blood (\”?g\/100g\”), 43 Fed. Reg. at 52954, but that otheradverse health effects occur at lower blood lead levels. These levels were referred to inthe rulemaking proceedings as \”subclinical effects,\” and can be defined as\”physiological changes which can be detected by sophisticated laboratory tests, butnot by either ordinary clinical examination or by the patient himself, which may beirreversible, and which likely bear a causal relationship with overt lead disease.\” UnitedSteelworkers of America, AFL- CIO v. Marshall, 647 F.2d 1189, 1249 (D.C. Cir. 1980), cert.denied, 453 U.S. 913 (1981) (\”Steelworkers\”). The Secretary foundthat these subclinical effects become significant at blood lead levels of 40 ug\/100g andhigher. 43 Fed. Reg. at 52954-60. Finding that the presence of subclinical effectsconstituted material impairment of health, the Secretary established the objective ofmaintaining the blood lead levels of lead-exposed workers at no higher than 40 ug\/100g. Id.The Secretary also found, however, that a blood leadlevel at or below 40 ug\/100g for all workers could not be feasibly achieved. Becausepeople differ in the manner in which they absorb lead, at any particular level of airbornelead a group of workers will exhibit a range of blood lead levels. The Secretary foundthat the lowest airborne level the major lead-based industries could feasibly achieve was50 ?g\/m3 and he therefore established that level as the permissible exposurelimit for airborne lead.[[4]] 43 Fed. Reg. at 52963. He also found that approximately 30%of workers would have blood lead levels over 40 ug\/100g when uniform compliance with the50 ?g\/m3 permissible exposure limit was achieved. Id.In order to protect the health of employees who wouldnot be adequately protected by the permissible exposure limit, the standard requiresemployers to establish programs of medical surveillance. 29 C.F.R. ? 1910.1025(j). Thekey to medical surveillance is blood testing, which the employer must offer to allemployees exposed to an \”action level\” of 30 ?g\/m3 for 30 or moredays per year. Subsections 1910.1025(j)(1) and (2). If an employee is found to have ablood lead level exceeding a certain amount–50 ug\/100g when the standard becomes fullyeffective–the medical removal protection provisions of the standard come into play.Subsection 1910.1025(k). The employer must remove the employee from exposure to lead abovethe action level until two consecutive blood tests show that the employee’s blood leadlevel has returned to no more than 40 ug\/100g. Subsections 1910.1025(k)(1)(i) and (iii).An employee must also be removed from exposure to lead above the action level withoutregard to his blood lead level if it is determined that \”the employee has a detectedmedical condition which places the employee at increased risk of material impairment tohealth from exposure to lead.\” Subsection 1910.1025 (k)(1)(ii). Such an employee canbe returned to his previous position if it is found that his medical condition has changedsuch that exposure to lead no longer places him at increased risk of material healthimpairment. Subsection 1910.1025 (k)(1)(iii)(A)(4).If an employee is removed from exposure to excessivelead due to an elevated blood lead level or other medical condition, the employer must paythe employee MRP benefits. Subsection 1910.1025 (k)(2)(ii) provides:For the purposes of this section, the requirement that an employer provide medicalremoval protection benefits means that the employer shall maintain the earnings, seniorityand other employment rights and benefits of an employee as though the employee had notbeen removed from normal exposure to lead or otherwise limited.The employer is required to provide MRP benefits,i.e., \”maintain the earnings, seniority and other employment rights and benefits ofan employee.\” for up to 18 months on each occasion an employee is removed fromexcessive lead exposure. Subsection 1910.1925(k)(2)(i). The Secretary included thisrequirement in the standard in order to induce employees to cooperate with medicalsurveillance. He was concerned that employees, faced with the possible loss of theirincome if medical surveillance showed they should be removed from lead exposure, wouldrefuse to cooperate with the standard’s medical surveillance provisions and thereby riskendangering their health. Thus, \”MRP was included in the final standard as a means ofmaximizing meaningful participation in medical surveillance provided to lead-exposedworkers.\” 43 Fed. Reg. at 52973.II.A. Amax-Lead Company, Docket No. 80-1793Amax operated a primary lead smelter in Missouri. Inlate 1979 and early 1980, the company transferred six employees from areas of high leadexposure to low exposure areas[[5]] due to their elevated blood lead levels. After aboutthree months, the blood lead levels of these employees returned to acceptable levels. Fourof the employees returned to their previous jobs while two bid for and won other jobs inthe facility.Before their transfers, the six employees worked inpositions that had to be filled during the plant’s entire 24-hour workday. For such jobs,the day was divided into three 8-hour shifts. Each employee was paid for a full 8 hoursbut was allowed a half-hour for lunch. The six employees were transferred to the mine\/millunit, which did not operate during the entire 24 hour day. Workers in this unit thereforeworked 8 1\/2 hour shifts, getting paid for 8 hours but not for their half-hour lunchbreak.The transferred employees were paid for their 40-hourwork week at their regular base rate of pay. In their regular jobs, they would also havehad the opportunity to work overtime. The collective bargaining agreement between Amax andthe United Steelworkers of America provided that overtime would be distributed \”asequitably as practical\” among employees in each job classification. Availableovertime was offered to employees in order of seniority. They could either accept orrefuse when their turn came. The company kept and posted records showing for each employeethe hours of overtime worked, the hours refused, and the total. Employees unavailable whenovertime was offered, including those transferred to low exposure jobs, were considered tohave refused offers of overtime work. Thus, for each of the six transferred employees, thecompany had records showing the amount of overtime they \”refused\” during theirtransfers.B. Schuylkill Metals Corporation, Docket No.81-0856Schuylkill operated a secondary lead smelter inLouisiana. The plant’s production department had a high airborne lead concentration, whilethe change house had a low lead concentration. Employees in the change house performedjanitorial duties such as washing work clothes and repairing respirators.Under the normal work schedule in the productiondepartment, employees worked six 40-hour weeks and two 48-hour weeks in any 8-week period.They thus averaged two hours of overtime per week. Production department employees werealso eligible to receive production incentive bonuses, which were based on the dailyamount of production in excess of a certain base amount. Production incentive bonusesvaried among the workers on a shift based on performance criteria unique to theindividual. In the change house, employees worked a 40-hour week. They did not workovertime and were not eligible for production incentive bonuses.Between January 1, 1980 and December 4, 1981,Schuylkill temporarily transferred a number of employees from the production department tothe change house. [[6]] While in the change house the employees were paid at the hourlywage rate they had earned in the production department. They did not, however, receiveeither overtime pay or production incentive bonuses.C. St. Joe Resources Company, Docket No. 81-2267St. Joe operated a zinc smelter in Pennsylvania. In1981, the company transferred one employee—Simpson Butler–pursuant to the MRP provisionof the lead standard. Butler had been hired in 1980 as a laborer, a position that did notinvolve excessive lead exposure. On April 2, 1981, he was awarded the position of\”weighman\” but, on July 17, 1981, he was returned to the Iaborer position due toan elevated blood load level.The plant operated 24 hours per day, seven days perweek, and the weighman job had to be covered at all times. To accomplish this, theweighmen were divided into four shifts that worked 20-week rotating schedules. Each shiftincluded various amounts of night, weekend, and overtime work, but the actual schedulewould vary during the 20-week rotation.St. Joe’s collective bargaining agreement providedthat weighmen would receive 1.5 times their base rate for scheduled Sunday and sixth daywork (\”scheduled overtime\”). The agreement further provided for extra hourly pay(\”shift differentials\”) for scheduled evening and night work. A weighman whoworked all of his scheduled time during a 20-week rotation would thus receive a totalamount of compensation, including scheduled overtime and shift differentials, that wouldexceed the employee’s base rate of pay multiplied by the number of hours actually worked.However, each employee’s pay during any particular two-week pay period would depend on thehours actually worked during that period, including the scheduled overtime and shiftdifferentials actually earned.Employees were also given the opportunity to workvoluntary overtime. The amount of such overtime available varied with the needs of theplant. Employees signed up if they were interested in voluntary overtime and would beoffered such overtime as the plant’s needs and their skills allowed. Voluntary overtimedid not necessarily involve the employee’s regular duties. During his 16 weeks as aweighman, Butler worked all of his regular shifts and also worked 45 hours of voluntaryovertime.When Butler was transferred, he was assigned dutiesas a laborer for an 8 hour per day, 40 hour per week shift. As a laborer, Butler was paidthe base rate he received as a weighman, but he worked no scheduled overtime or nightshifts and received no overtime pay or shift differentials. He refused the one offer ofvoluntary overtime he received.IIIThe MRP benefits provision requires that employersmaintain the \”earnings, seniority and other employment rights and benefits of anemployee\” who is transferred under the standard’s MRP provisions. The questionpresented by these cases is what an employer must pay a transferred employee in order tomaintain that employee’s \”earnings.\” The employers contend that they need onlypay an employee who works a normal 40-hour week after being transferred his regular hourlyrate of pay for those 40 hours, while the Secretary and unions claim the provisionrequires the employer to also pay additional amounts the employee could have earned if hehad not been transferred. In their view, Amax, Schuylkill, and St. Joe violated thestandard by not paying their transferred employees for potential overtime, shiftdifferentials, production incentives, and paid lunch periods (collectively, \”premiumpayments\”) they would have received but for the transfers.In interpreting a standard, the Commission employsthe same rules of construction that are used to discern the meaning of statutes. BungeCorp., 86 OSAHRC,12 BNA OSHC 1785, 1789 & n. 12, 1986 CCH OSHD ? 27,565, p. 35,804& n. 12 (No. 77-1622 et al, 1986). Ultimately, we must determine the intent of thestandard’s drafter, in this case the Secretary, at the time the standard was adopted. Themost compelling evidence of a drafter’s intent is, of course, the plain meaning of thewords he used. Id. In this case, however, the meaning of the crucial word\”earnings\” is not so plain as to enable us to resolve the dispute between theparties. \”Earnings\” is not a word of art but is a general term broad enough toencompass the interpretations offered by all of the parties. One dictionary defines\”earnings\” as \”money earned; wages; profits.\” Random HouseDictionary of the English Language 448 (1971). Another defines it as \”something(as wages or dividends) earned as compensation for labor or the use of capital.\” Webster’sThird New International Dictionary 714 (1971). Because the issue cannot be resolved onthe basis of the word’s plain meaning, we must look to the legislative history of thestandard to discern the Secretary’s intent when he promulgated the standard.The lead standard was the first, and is still theonly, OSHA standard containing a comprehensive MRP benefits provision. However, inadopting the standard, the Secretary did not write on an entirely clean slate. The issueof MRP benefits had previously been addressed in several contexts, and these provide abackground for examining the Secretary’s intent when he included the MRP benefitsprovision in the lead standard.The first federal law containing a MRP benefitsprovision was the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. ?? 801 etseq. (\”Mine Act\”).[[7]] That statute provides that any miner showing evidence ofblack lung disease be given the opportunity to transfer to a position for which the dustlevel is sufficiently low to prevent further development of disease. 30 U.S.C. ??843(b)(1) and (2). Any miner so transferred must be compensated at \”not less than theregular rate of pay received by him immediately prior to his transfer.\” 30 U.S.C. ?843(b)(3). This provision has been interpreted to mean that a miner need only be paid atthe same daily rate he was receiving just prior to transfer, not the amount he would haveearned if he had not been transferred. Higgins v. Marshall, 584 F.2d 1035 (D.C.Cir. 1978), cert. denied, 441 U.S. 931 (1979). When he adopted the OSHA leadstandard, the Secretary was aware of both this provision of the Mine Act and of theinterpretation placed on it in Higgins v. Marshall, for he discussed these mattersin the preamble to the OSHA standard. 43 Fed. Reg. at 54447-49.The Secretary considered MRP benefits in rulemakingproceedings for two other standards before the adoption of the lead standard. One of thefirst standards issued by the Secretary after notice-and-comment rulemaking regulatedoccupational exposure to asbestos. 29 C.F.R. ? 1910.1001. That standard contains alimited MRP provision, applicable only to employees who would be required to wearrespirators but who are medically incapable of doing so.Such employee shall be rotated to another job orgiven the opportunity to transfer to a different position whose duties he is able toperform with the same employer, in the same geographical area and with the same seniority,status, and rate of pay he had just prior to such transfer, if such a different positionis available.29 C.F.R. ? 1910.1001(d)(2)(iv)(c) (emphasis added).Subsequent rulemakings continued the practice of considering MRP protection as maintenanceof the employee’s \”rate of pay.\” The term \”rate retention,\” implyingmaintenance of an employee’s \”rate of pay,\” was often used as a synonym formedical removal protection. In promulgating a standard regulating exposure to coke ovenemissions, the Secretary considered a recommendation that he adopt a MRP provision. Therecommendation was that removal of an employee from exposure should \”not result inloss of earnings or seniority status to the affected employee.\” (Emphasis added.) TheSecretary referred to this recommendation as a \”rate retention provision.\” 41Fed. Reg. 46780 (Oct. 22, 1976). The Secretary did not, however, include such a provisionin the coke oven standard. 29 C.F.R. ? 1910.1029.The next standard promulgation proceeding in whichthe Secretary considered MRP protection involved the lead standard at issue here. TheSecretary first proposed a standard that did not contain a MRP provision. 40 Fed. Reg.45934 (Oct. 3, 1975). After receiving comments and holding informal public hearings on theproposed standard, the Secretary announced an additional comment period for the submissionof written data, views, and arguments on medical removal protection. 42 Fed. Reg. 46547(Sept. 16, 1977). The announcement stated:The medical surveillance provisions of the leadstandard should include a requirement for medical removal protection. This requirementwould maintain the rate of pay, seniority, and other rights of anemployee for the time period, or a portion thereof, that the employee is transferred orremoved from his or her job as a result of an increased health risk from exposure to lead.After a follow-up medical examination and opinion, the following options would beavailable with no loss of earnings or rights: Return to the original job,assignment to a different job (transfer), or continuation of the transfer or removal.Id. at 46548 (emphasis added). Another passagein the same announcement stated: \”Ninety days was mentioned as one time period forearnings protection (‘rate retention’).\” Id. at 46549. Thus, the announcementgave notice that the Secretary was considering the traditional type of MRP protection inwhich the employee’s rate of pay would be maintained during removal. It used the words\”earnings\” and \”earnings protection\” synonymously with \”rate ofpay\” and \”rate retention.\”When he issued the lead standard, the Secretary did not use the terms \”rate ofpay\” or \”rate retention,\” but mandated that employers maintain the\”earnings\” of transferred employees. The Secretary contends that his choice ofthe word \”earnings\” instead of \”rate of pay\” is significant. Heasserts that if he intended to limit MRP benefits to \”rate of pay,\” he wouldhave included language such as is found in the Mine Act instead of the language heactually chose.We cannot conclude that the Secretary deliberatelyused the word \”earnings\” in the final standard to indicate that he intendedsomething different than \”rate of pay.\” As we have noted, in the announcement inwhich MRP protection was injected into the rulemaking proceeding, the Secretary used\”earnings\” synonymously with \”rate of pay.\” Therefore, when he used\”earnings\” in the final standard, the most logical conclusion is that he wasagain using it as a synonym for \”rate of pay,\” particularly since he did notexpress any different intent. As St. Joe points out, the Secretary is sophisticated inlabor matters and knows that compensation issues often involve overtime and other premiumpayments. Thus, if the Secretary made a deliberate decision that premium payments were tobe included in MRP benefits, it is reasonable to infer that he would have made such anintent explicit. See United States v. American Trucking Associations, 310U.S. 534, 544 (1940) (\”a few words of general connotation appearing in the text ofstatues should not be given a wide meaning, contrary to a settled policy, ‘except as adifferent purpose is plainly shown’.\”)A further indication that \”earnings\” wasnot meant to include premium payments is the absence of evidence that the subject ofpremium payments received any attention in the rulemaking proceedings. As noted above, theannouncement that injected MRP into the rulemaking indicated that a traditional \”rateretention\” rule was being considered. The comments submitted in response to thisannouncement reflect that employees had one overriding concern: that their cooperationwith the medical surveillance provisions of the standard not lead to the loss of theirjobs. The Secretary cited the testimony of Anthony Mazzocchi, vice president of the Oil,Chemical and Atomic Workers Union, that the absence of an MRP provision would forceemployees to choose between their jobs and their health. 43 Fed. Reg. at 54442. In thepreamble to the lead standard the Secretary noted that the potential loss of one’s jobwill create a substantial deterrent to an employee’s cooperation with the standard’smedical surveillance provisions. However, there is nothing in the preamble to indicatethat the Secretary also believed that the potential loss of premium payments would createa comparable deterrent. The Secretary simply did not address the subject of premiumpayments.The only indication in the standard’s legislativehistory that the subject of premium payments was considered at all was a suggestion by theUnited Steelworkers of America that the Secretary include a definition of\”earnings\” in the standard. The Secretary declined this invitation, saying:The United Steelworkers of America urged that thestandard include a detailed definition of the term \”earnings,\” listing all thepossible forms of direct and indirect compensation which an employer might have normallygiven a worker in the absence of a removal. (Ex. 452, p. 44.) OSHA rejected the adoptionof such a detailed definition because it would likely be confusing to some employers inlight of the many contexts in which the standard will apply. To comply with the standard,an employer need only maintain the removed worker as though no removal had occurred.43 Fed. Reg. at 54466. If the Secretary trulyintended that \”earnings\” would include premium payments, the suggestion by theSteelworkers that he define \”earnings\” gave him the opportunity to explicitlystate that intent. His failure to include a definition of \”earnings\” is afurther indication he intended it to mean no more than his announcement originallyindicated, i.e., \”rate of pay.\”[[8]]The Secretary argues that the last sentence in theabove quotation and a statement elsewhere in the preamble that the MRP provision\”uses the all- encompassing phrase ‘earnings, seniority and other employmentrights and benefits’ to assure that a removed worker suffers neither economic loss norloss of employment opportunities due to removal,\” 43 Fed. Reg. at 52976 (emphasisby the Secretary) make clear his intention that MRP benefits include premium payments. Wedo not agree. In light of the Secretary’s failure to include a definition of\”earnings\” in either the standard or the preamble, and the absence of anydiscussion in the preamble of premium payments, we cannot read these general statements asexhibiting an intention on the Secretary’s part that MRP benefits include premiumpayments.Finally, if the Secretary did intend\”earnings\” to have a broader meaning than \”rate of pay,\” his actionwould be contrary to the spirit, and possibly the letter, of notice-and-commentrulemaking. In conducting such a rulemaking, an agency is required to give the public fairnotice of the rule it proposes to adopt, so that persons affected by the rule will have anadequate opportunity to make their views known. See Chamber of Commerce of theUnited States v. OSHA, 636 F.2d 464, 470-71 (D.C. Cir. 1980). As discussed above, theSecretary gave the public notice that he was considering adopting a \”rateretention\” provision. Had the Secretary given notice that he was also considering abroader MRP provision, one which would also require premium payments, it could be expectedthat he would have received comments addressing the necessity and propriety of suchpayments. As it was, nothing in the preamble or the standard indicates that the Secretaryreceived any comments addressed to premium payments, with the possible exception of theUnited Steelworkers’ general request, which the Secretary rejected, to include adefinition of \”earnings\” in the standard.An agency can, of course, deviate from a proposedrule when it issues a final rule, as long as the final rule is a \”logicaloutgrowth\” of the rulemaking proceeding. Steelworkers, 647 F.2d at 1221. Inorder to justify such a deviation however, there must be evidence in the rulemaking recordthat warrants the change. Id. If there was evidence in the record of the leadrulemaking to justify inclusion of premium payments in MRP benefits, the Secretary did notmention it or rely on it. Thus, even if the Secretary did use the word\”earnings\” because he meant MRP benefits to include premium payments, it ishighly doubtful whether the standard, as so interpreted, would be valid in light of theabsence of his reliance on any record evidence justifying the change.See United States v. Security Industrial Bank, 459 U.S. 70, 78 (1982)(interpretation of statute is favored that avoids question of statute’s validity).We conclude that Amax, Schuylkill, and St. Joecomplied with the MRP benefits provision by paying the employees they transferred at theirregular rate of pay for the 40 hours per week the employees worked during the periods oftransfer. Accordingly, the citations are vacated.[[9]]FOR THE COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARYDATED: June 25, 1986\u00a0\u00a0SECRETARY OF LABOR, Complainant, v. ST. JOE RESOURCES COMPANY, Respondent.OSHRC DOCKET NO. 81-2267DECISION AND ORDER Ditore, J.PRELIMINARY STATEMENTAs a result of an inspection of Respondent’s facilityat Monaca, Pennsylvania, on August 7 and August 20, 1981, by a safety and health officerof the Occupational Safety and Health Administration, a citation was issued to Respondentfor a serious violation of 29 CFR ? 1910.1025(k)(2)(i) with a proposed penalty of $60.00.Respondent contested the citation and penalty.The citation alleges:\”An employee removed from exposure to lead, orotherwise limited pursuant to this section was not provided with medical removalprotection benefits.(a) Simpson Butler was removed from his assignment asweighman and reassigned to a clean-up position it approximately $150 per month reductionin wages.Subsection (2)(i) of Section 1910.1025(k) is entitled\”(2) Medical removal protection benefits – (i) Provision of medical removalprotection benefits\” and provides: \”The employer shall provide to an employee up to eighteen (18) months of medicalremoval protection benefits on each occasion that an employee is removed from exposure tolead or otherwise limited pursuant to this section.\”Subsection (2)(ii) of Section 1910.1025(k) definesmedical removal protection benefits as follows:\”For the purposes of this section, therequirement that an employer provide medical removal protection benefits means that theemployer shall maintain the earnings, seniority and other employment rights and benefitsof an employee as though the employee had not been removed from normal exposure to lead orotherwise limited.\”In lieu of a hearing, Complainant, Respondent and theUnion (United Steelworkers of America), the parties to this action, have agreed to submitthe contested issues for resolution on the basis of a Joint Stipulation of facts (CourtExh. A).ISSUES1. Whether the promulgation of Section1910.1025(k)(2)(i) Lead Standard was a valid exercise of the Secretary of Labor’sstatutory authority under the Occupational Safety and Health Act of 1970.2. If it was, whether the standard conflicted withSection 4(b)(4) of the Act (29 U.S.C. ? 653(b)(4)3. If it did not, whether Respondent violated thestandard.4. If it did, whether the violation was serious.5. If it was, whether Commission has the authority toorder an abatement of the violation by means of retroactive \”back pay\”.6. Is the proposed penalty reasonable and proper.STATEMENT OF FACTSFor the purposes of convenience the Joint stipulationof the Parties is set forth verbatim. \”The parties hereto stipulate and agree that all proper, necessary and indisposableparties are parties hereto, and to the following facts, but without prejudice to any partycontending that any such fact is irrelevant:1. Respondent is a corporation with its principal office and place of business in New YorkCity, New York. Respondent maintains an office and place of business at Josephtown Road,Monaca, Pennsylvania.2. An inspection of Respondent’s Monaca, Pennsylvaniafacility was conducted between August 7 and August 20, 1981 by a compliance safety andhealth officer from the Pittsburgh, Pennsylvania area office of the Occupational Safetyand Health Administration.3.At the time of the inspection noted above, and atall times material hereto, Respondent was engaged at its Monaca, Pennsylvania facility inthe business of zinc smelting and refining.4. Respondent employs approximately 450 employees atits Zinc smelting and refining facility in Monaca, Pennsylvania.5. Respondent utilizes goods, equipment and materials shipped from outside the State ofPennsylvania and is engaged in a business affecting commerce. Respondent is, therefore, anemployer within the meaning of the Occupational Safety and Health Act\” (\”theAct\”).6. Following the aforesaid inspection by theSecretary’s representative, a citation was issued to Respondent. The citation alleged thatRespondent was in serious violation of the Act; a penalty of sixty dollars ($60.00) wasproposed. A copy of the Citation and Notice of Proposed Penalty marked Exhibit\”A\”, is attached hereto and made a part hereof. The citation alleges a violationof paragraph (k)(2)(i) of the provisions of 29 C.F.R. Section 1910.1025, et seq.(\”the lead standard\”). A copy of the lead standard and Appendices A and Bthereto, marked Exhibit \”B\”, is attached hereto and made a part hereof. Alsoattached as Exhibit \”C\” are the Preambles to the lead standard published in theFederal Register on November 14 and November 21, 1978 and the corrections thereto. Instipulating that the Appendices to the lead standard and Exhibit C may be made part of therecord herein, Respondent agrees that the said documents are available to the public andrepresent statements that the Secretary has made with respect to the lead standard.Respondent’s agreement to this stipulation does not constitute agreement with oracquiescence [sic] in any statement of law or fact made by the Secretary or any otherperson in said documents.7. The serious citation and proposed assessment ofpenalties were timely contested by Respondent.8. Jurisdiction of this proceeding is conferred uponthe Occupation Safety and Health Review Commission Section 10 of the Act.9. Respondent’s employee, Simpson Butler, employee#1558, was hired as a Laborer at Respondent’s facility on November 17,1980. He had beenemployed in the facility prior to its shutdown in December 1979 and was rehired when itopened again in the Fall of 1980.10. Pursuant to the provisions of the attachedcollective bargaining agreement between Respondent and the United Steelworkers of America(\”USW\”), Simpson Butler bid to and was awarded the position of Weighman in theSinter Plant at Respondent’s facility, which position he assumed on April 2, 1981. A copyof the agreement, marked\” Exhibit D\”, is attached hereto.11. On or about July 17, 1981, Respondent temporarilytransferred Simpson Butler from his regular work assignment at Respondent’s Monaca,Pennsylvania facility. In voluntary compliance with the provisions of 29 C.F.R. Section1910.1025(k)(1)(i)(C), Respondent removed Butler to a position involving low leadexposure. Respondent transferred Butler when blood tests taken by its medical personnelindicated that his blood lead level had reached or exceeded 60 micrograms of lead perdeciliter (dl) of whole blood. Butler’s blood lead levels between November 17, 1980 andFebruary 23, 1982 were as follows: Date Blood lead level in micro-grams\/dl of whole blood November 17, 1980 34 July 6, 1981 77 July 13, 1981 78 February 23, 1982 44 12. Respondent has, in compliance with the requirements of 29 C.F.R. Section 1910.1025(j),conducted a biological monitoring and medical surveillance program at its zinc smeltingand refining facility in Monaca, Pennsylvania both prior to the cessation of operations inDecember 1979 and subsequent to the recommencement of operations in the Fall of 1980.13. Respondent presently takes blood lead samplesfrom: (1) Simpson Butler on a monthly basis; (2) about twenty-two employees every twomonths: and (3) about forty-two employees every six months.14. Respondent uses the results of the blood leadsamples to determine, inter alia, whether employees need to be removed fromexposure to excessive air leads pursuant to the provisions of 29 C.F.R. Section1910.1025(k)(1)(i)(C).15. The employees are notified periodically that theyhave been scheduled for biological monitoring, and they are expected to report on scheduleto have their blood samples taken. The notices used for this purpose have informed theemployees that participation in the program is a requirement of the job and refusal toparticipate will subject them to progressive discipline. Attached hereto as Exhibit\”E\” are copies notification sheets for biological monitoring that were posted inthe facility. 16. Respondent will not tolerate the refusal of anyemployee to participate in its biological monitoring and surveillance program since suchrefusal would deprive Respondent of the information it needs to determine whether theemployee is disqualified to work in atmospheres wherein air leads exceed OSHA prescribedexposure Iimits.17. Respondent would exercise its rights pursuant toArticles XIV and VI of the agreement between it and the USW (Ex. D) to impose progressivediscipline up to and including discharge on any employee who refuses to participate inRespondent’s biological monitoring program. Respondent’s position is that an employee’srefusal to participate in the biological monitoring program is just cause for dismissal.18. Respondent has had no need to impose disciplineagainst any employee at its zinc smelting and refining facility for refusal to participatein its biological monitoring program. Instead, Respondent has counseled a small number ofemployees who expressed their reluctance to participate, and the counseling was sufficientto obtain their participation in the program.19. Respondent has, however, warned at least oneemployee who refused to participate in Respondent’s air lead monitoring program. Thewarning was documented by way of a letter filed in the employee’s Department personnelfile indicating that he would be given time off without pay for future infractions. Theletter is attached as Exhibit F.20. Articles VII, VIII, IX, of the attachedcollective bargaining agreement (Ex.D) , as modified by local agreements (Ex. G),represent the procedures followed by Respondent, and agreed to by the USW, regarding hoursof work, regularly scheduled overtime, voluntary overtime and shift differential pay forthe job position of Weighman.(a) A weighman is assigned to one of four\”shifts\” of employees. Each \”shift\” of employees is assigned a20–week rotating schedule which permits Respondent’s facility to operate seven days aweek with three 8-hour time shifts per day (day, evening and night shifts). Exhibit Hhereto shows a typical 20-week rotating schedule for one of the four employee\”shifts\”. During the 20-week period, an employee assigned this schedule, and whois available to work at all times, will work:- 35 daylight shifts; – 35 evening shifts;- 35 night shifts.An employee assigned this schedule will work 15Sundays and 5 sixth days. An employee who works the entire 20-week schedule will work atotal of 840 actual hours.(b) The attached collective bargaining agreement (Ex.D) provides that premium compensation be paid at the rate of 1.5 times an employee’s baserate of pay for scheduled Sunday and sixth day work (referred to also as scheduledovertime\”). Consequently, the total of available \”compensable work hours, asdistinguished from hours actually worked, during the 20-week rotating schedule (Ex. H)will be 920 hours, which is computed as follows:1. Straight time:(35 days x 3 x 8 hours per day) less 15 Sundays x 8 hours and 5 sixth days x 8hours) = 680 hours;2. Sunday premium:15 Sundays x 8 hours x 1.5 = 180 hours;3. Sixth day premium:5 sixth days x 8 hours x 1.5 = 60 hours.Thus, during a 20-week period, an employee who worksall scheduled shifts would be compensated for straight time and scheduled over-time(Sunday and sixth day premium) in an amount equal to the following:employee’s base rate of pay x 920 hours.(c) In addition, the attached collective bargainingagreement provides that shift differential premiums be paid for scheduled evening andnight work. Thus, during the same period, if the employee works all scheduled shifts, hewill receive shift differential pay as follows;35 night shifts x 8 hours per shift x $0.50 per hour= $140.0035 evening shifts x 8 hours per shift x $0.30 perhour = $84.00The maximum shift differential pay presently available during a 20-week schedule is$224.00.(d) On the basis of the above, an employee’s wage forone week of the 20-week scheduled period may be roughly approximated from the followingformula:(employee’s base rate x 920 hours) + $224.00This formula produces only an approximation becausethe employee is paid according to the shifts and days actually worked during a two-weekpay period. For example, if the employee worked all available time during the pay periodcomposed of weeks 1 and 2 on Exhibit H, he would not be paid for scheduled overtimebecause there is none, but he would be paid for one week of night differential and oneweek of evening differential. In contrast, during the pay period composed of weeks 3 and4, the employee would receive only straight time pay for week 3, but would also receiveshift differential pay and premium pay for scheduled overtime for week 4.21. When Simpson Butler assumed the duties ofWeighman, he was assigned to the third \”shift\” of employees (Ex. I) who werethen in week 14 of the rotating schedule, as shown in Exhibit H. Butler completed theremaining 6 weeks of this 20 week schedule with his group, and then commenced a new 20week schedule. He was removed from his job position when his employee \”shift\”was in week 10 of the new schedule. Thus, he worked a total of sixteen weeks over two20-week rotating schedules. Butler worked all scheduled shifts to which he was assignedduring these sixteen weeks, working 656 actual hours.22. Following removal as specified in paragraph 11,Butler was assigned Laborer duties at the smelter. He has been offered the opportunity towork 8-hour day light shifts, Monday through Friday, continuously since his removal fromthe position of Weighman. 800 hours of work have been available every 20 weeks. Exhibit Jhereto is a Letter of Intent to supplement Article XII of the contract (Exhibit D) betweenRespondent and the USW.Paragraph 9 of the Letter provides that employees whoare removed from exposure to excessive levels of a toxic substance and who are assigned toother duties will have their rate protected during the reassignment. Butler’s rate as aWeighman has been protected since he was removed, i.e., he has received and continues toreceive his base rate of pay as a Weighman for hours he has worked as a Laborer. He didnot receive scheduled overtime work and he was not paid for such work, nor did he receiveshift differential pay. On the basis of the above, the wage for one week of a 20-weekperiod worked by Simpson Butler as a Laborer since he was removed may be represented bythe following formula:employee’s base rate x 800 hours 23. Voluntary overtime work, which is distinct from\”scheduled\” overtime (Sunday and sixth day work), is made available from time totime to employees who are assigned to a rotating schedule. Employees who desire to workvoluntary overtime indicate their interest by signing up for this work on sheets used forthat purpose. However, voluntary overtime work is not available on a regular basis. Whenit does become available, moreover, it varies in nature depending entirely on productionand maintenance needs. The work offered to an employee may, and often does, involve dutiesdifferent from those of his normal job position. The work is offered only to personsqualified and available to perform it. An employee may refuse an offer of voluntaryovertime.24. Simpson Butler worked 45 hours of voluntaryovertime during the sixteen week period he worked as a Weighman. He accepted 16 hours ofsuch work on two consecutive days in April, 1981, 8 hours on one day in May, 8 hoursspread over two consecutive days in, June, and 13 hours spread over two separate days inJuly, 1981. The total of his voluntary overtime hours represents 6.86 percent of his total\”scheduled\” work time (656 hours) during this period. Butler received premiumpay for his voluntary overtime hours in accordance with the terms of the attachedcollective bargaining agreement and related agreements. (Exs. D and G).25.The amount of available voluntary overtime declined subsequent to Simpson Butler’sremoval from his Weighman position. During the period he was a Weighman, 892.5 voluntaryovertime hours were worked in the Sinter Plant and 12,371 hours of scheduled time wereworked. Thus, the ratio of voluntary time to scheduled time was 7.21 percent. Thereafter,during, the period beginning on July 27, 1981, and ending on April 26, 1982, 1,292.3voluntary overtime hours were worked in the Sinter Plant and 34,222.7 scheduled hours wereworked. Accordingly, the ratio of voluntary time to scheduled time was 3.78 Percentfollowing his removal.26. Simpson Butler was not routinely offeredavailable non-scheduled overtime work following his removal. He was, however, offered onesuch overtime opportunity, but he declined the offer. Butler has not, therefore, receivedpremium pay for voluntary overtime work subsequent to his removal.27. Simpson Butler took one week of vacation fromAugust 31 through September 4, 1981, and he did not work December 14 through December 18,1981 because of personal illness. For purposes of the procedures set forth herein(regarding hours of work, regularly scheduled overtime, voluntary overtime and shiftdifferential pay), vacation and personal illness days are noncompensable time for allemployees at Respondent’s facility.28. The parties stipulate and agree that Simpson Butler’s base rate of pay was $9.78 perhour from the date of his removal until August 1, 1981 and has been $10.08 per hour sincethat date. 29. The parties stipulate and agree that the $10.08 rate shall be used to calculateovertime premium pay in the event the Commission enters a final order that eitherscheduled overtime premium pay or voluntary overtime premium pay or both are requiredunder 29 C.F.R. ?1910.1025(k)(2).30. The scheduled average weekly overtime premiumpay, calculated by subtracting the weekly wage figure generated by the formula inparagraph 22 from the weekly wage figure generated by the formula in paragraph 20(d), is$71.68.31. The maximum weekly average voluntary overtimepremium pay Butler could have earned since his removal had he been offered and acceptedall such opportunities offered to him using the sinter plant average set out in the lastsentence of Paragraph 25 herein is $22.86.32. The parties stipulate and agree that either orboth of the weekly average premium pay figures set forth in Paragraphs 30 and 31 will beused to calculate \”back pay\” if the Commission determines that back pay isrequired in its final order in this matter. The term \”back pay\” as used hereinmeans that overtime premium pay whether scheduled, voluntary or both which the Commissionmight determine is required under 29 C.F.R. ?1910.1025(k)(2) and which Butler did notreceive during the period of this contest.33. The parties stipulate and agree further that in the event the commission enters afinal order requiring the payment of scheduled overtime or voluntary overtime premium payprospectively as distinguished from retroactive or back pay, the pay figures appearing inthis stipulation may be adjusted as appropriate to reflect the conditions that prevail asof such date.34. The parties stipulate and agree further that inthe event the Commission enters a final order in this matter requiring Respondent to payButler scheduled overtime premium pay, voluntary, overtime premium pay, or both regardlesswhether such order requires back pay or prospective pay or both, Respondent shall not berequired to compensate him for time he was not available to perform work.35. The parties also stipulate and agree that nothingsaid herein shall be construed to preclude Respondent from seeking a stay including ajudicial stay of any final order of the Commission that might require the payment ofovertime premium payment under 29 C.F.R. ? 1910.1025(k)(2).FACTUAL SUMMARYIn summary, on, April 2, 1981, Respondent’s employeeSimpson Butler started work as a Weighman in the Sinter Plant of Respondent’s facility(Stip. ? 10)*. On or about July 17, 1981, Butler was removed from, his position asWeighman and transferred to the low lead exposure position of laborer. The removal andtransfer were based on blood tests taken by Respondent’s medical personnel, which revealedthat Butler’s blood lead level had reached or exceeded 60 micrograms of lead per deciliter(dl) of whole blood. Butler’s removal was mandated by Section 1910.1025(k)(1)(i)(C) (Stip.? 11).As a Weighman,Butler’s earnings consisted of base orstraight time pay, shift differential pay, Sunday premium pay, 6th day premium pay(scheduled overtime) and voluntary overtime pay (Stip. ?’s 20, 21, 22, 23). Respondentpaid Butler the base rate of pay of a Weighman for all the hours he worked as a laborerduring the removal period (Stip. ? 22). Respondent did not pay Butler shift differentialpay, scheduled overtime pay or voluntary overtime pay after his removal from the Weighmanposition (Stip. (P0 22, 24, 26). Butler as a laborer worked 8 eight hours a day, Mondaythrough Friday, with no shift differential or scheduled overtime pay (Stip. ? 22).The basic issue is whether Respondent violated 29C.F.R. 1910.1025 (k)(2)(i) by failing to pay Butler the scheduled overtime pay, shiftdifferential pay and voluntary overtime pay he would have earned if he had not beenremoved from his position as Weighman.The facts are not disputed Respondent has raised several legal arguments attacking thevalidity and applicability of Section 1910.1025 (k)(2)(i)First, Respondent argues that Section 1910.1025 (k)(2)(i) is invalid because the medicalremoval protection benefits provision (MRPB) is beyond OSHA’s statutory authority(Respondent’s brief pp 8-19) Respondent’s posits its argument on the ground that theOccupational Safety and Health Act (OSH) contains no express grant of authority to OSHA,to require employers to maintain the earnings of a removed employee at the pre-removallevel. Respondent contends that Congress was well aware of the concept of the MRPB sinceit had less than a year prior to the enactment of the OSH Act, granted such authorityunder the Federal Mine Safety and Health Act. Therefore, Congress did not intend to grantsuch authority to OSHA.Respondent to support its conclusion as toCongressional intent, utilizes the principle that \”[w]here a statute with respect toone subject contains given provisions, the omission of such a provision from a similarstatute is significant to show a different intention existed\”, citing case authorityincluding American Textile Manufacturers Institute v. Donovan* 452 U.S. 490, 101S.Ct. 2478 (1981) (Respondent’s brief p. 10). This issue, among others, was fullylitigated and argued before the D.C. Circuit in United Steelworkers v. Marshall647 F.2d 1189 (1980), cert. denied, 453 U.S. 913 (1981), where the validity of the leadstandard, as promulgated, was challenged. Respondent was a party to that action(Respondent’s brief pp 22-23).Chief Judge J. Skelly Wright writing for a majorityof the Court after an exhaustive analysis of the MRPB provision concluded that [t]hesubstantive provisions of the lead standard, including the medical removal protectionprogram …. fall within the scope of OSHA’s statutory power and are reasonable exercisesof that power. 647 F.2d at pages 1223-1234, 1311.Respondent contends that the Court’s decision in UnitedSteelworkers is incorrect and should not be followed. We do not agree with thiscontention. We fully concur in the majority’s decision including the Court’s analysisdistinguishing the case relied on by Respondent in its brief here, WhirlpoolCorporation v. Secretary of Labor, 445 U.S. 1, 100 S. CT. 883 (1980).The Secretary of Labor in promulgating the LeadStandard has devised a comprehensive regulatory program to protect workers from thedangerous hazards of overexposure to lead. The program requires the removal with attendantbenefits, of employees whose lead blood levels have reached and exceeded permissiblelimits. See 29 C.F.R. 1910.1025 and sections thereunder.In American Textile Manufacturers Institute Inc., v. Donovan, 452 U.S. 490,101 S.Ct. 2478 (1981), the United States Supreme Court had before it a challenge to thevalidity of the cotton dust standard promulgated by the Secretary of Labor. Includedwithin the challenge was one made to OSHA’s authority under that Act, to require employersto guarantee that employees suffer no loss of earnings or other employment rights orbenefits when transferred due to exposure to cotton dust above a certain level.The Court held that the Secretary of Labor in his\”Summary and Explanation of the Standard\” never explained the wage guaranteeprovision as an approach, designed to contribute to increased health protection butexplained it as solely designed \”to minimize any adverse economic impact on anemployee. The Court concluded that since \”the Act in no way authorized OSHA to repairgeneral unfairness to employees that is unrelated to achievement of health and safetygoals\”, it was beyond OSHA’s statutory authority to promulgate the wage guaranteeregulation. 101 S.Ct. at 2505-2506.The Court did acknowledge that a wage guaranteeprovision if health related, may very well have merit but that the \”healthrelated\” contention must be properly articulated in the Secretary’s determination orstatement of reasons and supported by substantial evidence. The Secretary of Labor failedin these latter requirements when he promulgated the cotton dust wage guarantee provision,101 S.Ct. at 2505 nn. 72 & 73 and 2506 n. 74. It is reasonable to infer that if theSecretary of Labor had formulated and articulated the health related\” rationale andsupported it by substantial evidence, the Court might have reached a different conclusion.It is interesting to further note that the UnitedStates Supreme Court rendered its decision in American Textile on June 17, 1981. OnJune 29, 1981, twelve days later, the Court denied certiorari in the UnitedSteelworkers case. 453 U.S. 9131, 101 S.Ct. 3148. Although one may not drawsubstantive conclusions that the Court was from a denial of certiorari, one can infer thatthe Court was aware of provisions dealing with earnings protection benefits and the issuesinvolved as they relate to the Occupational Safety and Health Act.Aside from the economic impact the earningsprotection benefits provision of the Lead Standard may have on employees, it is healthrelated. The MRPB is designed and intended in the overall program of worker protection, toreduce an employee’s exposure or continued exposure to lead poisoning by eliminatingpossible attempts by employees to defeat other provisions of the lead standard and therebyincrease their exposure to lead poisoning.The promulgation of the medical removal protection benefits standard is valid and withinthe statutory authority of the Secretary of Labor.Respondent argues in Point II of its brief (pp 19-24)that OSHA’s lead standards and Respondent’s compliance with these standards, other thanthe medical removal protection benefits provision, insures that the exposure of itsemployees to lead is reduced or eliminated.* Respondent states that all of its employeeswho are exposed to the hazards of lead must participate in Respondent’s mandatory bloodlead monitoring program or suffer disciplinary action. Therefore, Respondent reasons, themedical removal protection benefits provisions neither contributes to the reduction orelimination of the lead hazard nor reduces or eliminates an employee’s risk of exposure tolead.Respondent’s approach is somewhat simplistic andfails to consider or overlooks the underlying basis established by OSHA, as to the reasonsthe medical removal protection benefits provision is necessary to insure the efficacy ofthe other lead standards relating to medical surveillance and medical removal. (See Exhs.C(i)(a), p. 52973, C(i)(b) pp 54446-54447).The Court in United Steelworkers of America v.Marshall, 647 F. 2d 1189, 1237 (1980), clearly sets forth OSHA’s findings and basisfor the medical removal protection benefits provision.\”OSHA found, however, that unless workers were guaranteed all their wage andseniority rights upon removal, they would resist co-operating with the medicalsurveillance program that determined the need for removal, since they reasonably mightfear being fired or sent to lower-paying jobs if they revealed dangerously high blood-leadlevels. 54442\/2-54446\/2.[[x]] The record showed that workers often consumedself-prescribed chelating agents, and lied to physicians about their subjective symptoms,all because they held job security more dear than their health. 54446\/3-54447\/1 (citingevidence). OSHA also found existing earnings protection programs in private bargainingagreements too few and too limited. 54444\/2. Moreover, exercising its statutory authorityto rely on experience gained under a congressionally-mandated earnings protection programlike the one that is part of the Federal Coal Mine Health and Safety Act, see text andnotes at notes 67-68 supra, workers-perhaps because they were not guaranteed the seniorityrights and pay increases of their high-exposure jobs – frequently refused to co-operate inmedical review. 54447\/1-54449\/1.\”It is clear from the evidence and case authority,that the medical removal protection benefits provision is health related and is anintegral part of the Lead Standard’s objective to reduce or eliminate employee exposure tolead.In Point III A of its brief (pp 24-36), Respondentcontends that Section 4(b)(4) of the Act prohibits the Commission from interpreting themedical removal protection benefits provision to increase Respondent’s liability beyondthat set by the State of Pennsylvania’s workmen’s compensation laws.Section 4(b)(4) of the Act states:\”Nothing in this Act shall be construed tosuperceded or in any manner affect any workmen’s compensation law. . . \”(29 U.S.C. ? 653(b)(4)).The court in United Steelworkers, supra,at pages 1235-36, after determining that protection benefits provision did not violateSection 4(b)(4) of the Act, stated:\”The question remains, then, what doesSection 4(b)(4) mean, if it does not mean that OSHA is barred from creatingmedical removal protection? We see two plausible meanings. First, as courts have alreadyheld, Section 4(b)(4) bars workers from asserting a private cause of action againstemployers under OSHA standards. Jeter v. St. Regis Paper Co., 507 F.2d 973(5th Cir. 1975); Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323 (4th Cir.1974). Second, when a worker actually asserts a claim under workmen’s compensation law orsome other state law, Section 4(b)(4) intends that neither the worker nor the partyagainst whom the claim is made can assert that any OSHA regulation or the OSH Act itselfpreempt any element of the state law. For example, where OSHA protects a workeragainst a form of disablement not compensable under state law, the worker cannot obtainstate relief for that disablement. Conversely, where state law covers a wider range ofdisablements than OSHA aims to prevent, an employer cannot escape liability under statelaw for a disablement not covered by OSHA. In short, OSHA cannot legally preemptstate compensation law, even if it practically preempts it in some situations.We conclude that though MRP may indeed have a great practical effect on workmen’scompensation claims, it leaves the state schemes wholly intact as a legal matter,and so does not violate Section 4(b)(4).\” (Emphasis in original).We agree with the Court’s determination and fail to see how Section 4(b)(4) of the Act,legally affects or supercedes Pennsylvania’s workmen’s compensation laws. The amount ofcompensation that Butler or any other employee could receive under Pennsylvania’sworkmen’s compensation law, is neither increased or decreased by the amount due theemployee under the medical removal protection benefits provision. This provision does notalter, supercede or preempt the state’s law, and imposes no burden on the state to awardmore or less than its laws require. Nor does it increase Respondent’s liability understate law. The affect of the medical removal protection benefits provision is on theemployer’s liability under the OSH Act. It requires the employer to make up the differencebetween what is granted an employee under state law and what is calculated to be due himunder federal law (see, 29 CFR ?1910.1025(k)(2)(iv)).Respondent’s liability under both laws is no indication that Pennsylvania’s workmen’scompresentation law, per se, has been altered or superceded. Respondentmistakenly equates its dual liability under federal and state law as a supersession of thestate law by OSHA’s MRPB provision.In Point III B of its brief (pp 29-33), Respondentfurther contends that any interpretation of the medical removal protection benefitsstandards, requiring payment of shift differential and overtime pay to a removed worker,is impermissible, discriminatory, would reward workers for hours not worked and wouldencourage others to become leaded in order to receive more pay for less work. We have heldthat the medical removal benefits protection benefits standard is valid and properlywithin the statutory authority of the Secretary of Labor. Section 1910.10(?) (k)(2)(iv) defines medical removalprotection benefits to mean that \”the employer shall maintain the earnings, . . . ofan employee as though the employee had not been removed from normal exposure to lead orotherwise.\” The definition is clear on its face. The word \”earnings\”unqualified and unlimited means all earnings. An employee removed because of lead exposureis to continue to receive all the earnings he would have received if he had not beenremoved. The Secretary understood this when he explained in the Preamble to the LeadStandard, that medical removal protection benefits:\”In most cases will simply mean the rate of payof a worker transferred to a low-lead-exposure job. The standard however, uses theall-encompassing phrase ‘earnings, seniority and other employment rights and benefits’ toassure that a removed worker suffers neither economic loss nor loss of employmentopportunities due to removal.\”(Exh. C(i)(a) p. 52976, Col. 1).Applying the standard and definition to this case, it means that Butler’s earnings are tocontinue and are to be maintained as if he still was employed as a Weighman. It does notmean that Butler is to receive more than he would have received if he was not removed.Butler is entitled only to the amount he would have earned if he continued working as aWeighman. This in turn must be tempered by reason and be achievable by means other thanspeculation. Respondent is mistaken in believing that earningsmean only the worker’s pre-removal base rate of pay. \”Earnings\” is a broadconcept and includes not only the base rate of pay but all other ascertainable earningsthat could have been earned by a worker prior to his removal.The question here is not what \”earnings\”mean but how are they to be calculated so that Butler does not receive more than he wouldhave received if not removed.Butler could have been, carried on the company records as a Weighman for earningspurposes. His shift differential and scheduled overtime pay, could have been calculatedduring the removal period, based on the four ‘shifts’, 20 weeks rotating schedule. (Stip.? 20). Deductions during that time could have been made against the earnings amount foruncompensable time. (Stip. ? 27).Respondent states without further support (brief pp34-35) that \”it would be extremely difficult to calculate the overtime opportunitiesSimpson Butler would have. Therefore, the parties agreed to an artificial formula tocalculate shift differential and scheduled overtime due Butler after he was removed.(Stip. ?’s 20(d), 30).Whatever method is used, Butler is entitled to theshift differential and scheduled overtime earnings that would have accrued to him if hehad not been removed.Voluntary overtime present a different and moredifficult problem. Voluntary work is not available on a regular basis, may differ from thenormal job duties of an employee, is offered only to qualified persons available toperform it and depends on the subjective determination of the employee to accept it. Theamount of available overtime declined subsequent to Butler’s removal and he was notroutinely offered such work. The one offer made to him he declined to accept. During hissixteen weeks of work as a Weighman, Butler accepted 45 hours of voluntary overtime work(Stip. ?’s 23, 24, 25, 26).No set formula can properly determine what voluntarywork would have been available, offered to and accepted by Butler if he had not beenremoved. Butler is not entitled to voluntary overtime pay during his removal period on anyset formula. He is entitled only to voluntary overtime that was available, offered to himand accepted by him during the removal period.In part C of Point III of the brief (pp 33-36,Respondent argues that it had no notice that \”earnings\” in Section 1910.1025(k)(2)(i) meant anything other than the base rate of pay since it does not mentionovertime or shift differential pay. The standard does not refer specifically to overtimeor shift differential pay nor does it refer specifically to base rate of payment. Itspeaks of \”earnings\” which is an all-inclusive term and as indicated previously,means all ascertainable earnings that a worker would have received if he continued toperform the same work that he performed before his removal. In Butler’s case, this meanthis base rate of pay, shift differential and scheduled overtime pay but not voluntaryovertime.Voluntary overtime pay was excluded from earnings because of its speculative character andbecause it depended upon the worker’s subjective option to accept or decline it.Nonetheless, the standard, and its definition gave ample notice to Respondent that itmeant not only the base rate of pay but all other ascertainable earnings.Respondent also contends (brief pp 36-37), assumingthe validity and applicability of the standard, that a violation of the standard is deminimus because the failure to pay shift differential and overtime pay has nodirect or immediate relationship to occupational safety and health. This argument hasfacial appeal because Butler was removed from exposure to lead pursuant to other leadstandards prior to the violation of standard herein. Therefore, reasons Respondent, anyviolation of the \”earnings\” benefit standard could not expose Butler to leadhazards and had no direct or immediate relationship to his health.Respondent misconstrues the purpose of the standardand reads it in isolation. The Lead Standard consists of a comprehensive set ofregulations promulgated to protect and prevent employees in the lead industry from beingoverexposed to the hazards of lead. The sections of the Lead Standard interrelate to carryout the purpose and intent of the Standard.The Lead Standard is only as strong as its component parts. If compliance with, andenforcement of any section is weakened, the Standard as a whole loses its optimum effect.It has been established, supra, (p. 23), that worker participation in theregulatory scheme is essential to its operation. To insure this participation, economicconsiderations which could cause an employee to thwart the objectives of the Standard wereeliminated.No one can seriously question that the exposure of anemployee to the hazards of lead could cause serious physical harm or death to theemployee. Any violation of any part of the Lead Standard which reduces or could possiblyreduce the health protection intended by the Lead Standard, is serious because it couldincrease the risk of overexposure to lead.Finally, Respondent argues (brief pp 37-44), that theCommission has no authority to order a \”back pay award\” because it is notauthorized to do so under the civil penalty sections of the Act (29 U.S.C. ? 666).Further, the Commission has no authority to order retroactive abatement.Respondent is correct in stating that the Commissionis only authorized to assess civil penalties as prescribed in Section 17 of the Act (29U.S.C. ? 666). Civil penalties are imposed upon an employer for violating an occupationalsafety and health standard. Abatement is the means or methods an employer must employ tocorrect a violation of a standard.Abatement and civil penalty are not synonymous. They are entirely separate excepts underthe Act. The issue in this case is not one for \”back pay\”, per se,but whether Respondent violated the Act and if it did what abatement is necessary tocorrect the violation.Generally, abatement methods or means in occupationalsafety and health cases involve the production, utilization or installation,prospectively, of protective devices, engineering controls, etc. They all involve theexpenditure of money by an employer to achieve the end result. The very nature of thistype of abatement does not permit retroactive application. An employer, for example,cannot install or utilize engineering controls retroactively to the date the violationoccurred, even if the evidence established that the violation was a continuing one.Shift differential and scheduled overtime paymentsalthough different in nature from the usual forms of abatement, are nevertheless a methodof abatement. This type of abatement lends itself to retroactive application because ofits nature (money payment) and because here the evidence established that the violationwas a continuing one. The violation occurred when Butler’s first weeks earnings were dueafter, his removal which was on or about July 17, 1981. The citation was issued,approximately a month and a half later on September 11, 1981, well within the limitationclause of the Act (Section 9(c), 29 U.S.C. ? 658(c)). Although the type of abatement hereis novel, it is well within the statutory authority of the Commission.Based on the record and a consideration of thefactors set forth in Section 17(j) of the Act, the penalty of $60.00 proposed by theSecretary of Labor is reasonable and proper. FINDINGS OF FACTThe relevant and material facts have been stipulatedby the parties in their Joint Stipulation (Court Exh. A, supra, pp 4-16).CONCLUSIONS OF LAW1. Section 1910.1025(k)(2)(i) of the Lead Standard is valid and within the statutoryauthority of the Secretary of Labor.2. Section 1910.1025(k)(2)(i) of the Lead Standard does not conflict with Section 4(b)(4)of the Act.3. From September 11, 1981, and for approximately a month and a half prior thereto,Respondent was in violation of Section 5(a)(2) of the Act (29 U.S.C. ? 654(a)(2) forfailing to comply with 29 CFR ? 1910.1025(k)(2)(i).4. A \”back pay\” retroactive money payment is the proper method of abatement tocorrect the violation herein.5. The violation of the standard by Respondent isserious. 6. A penalty of $60.00 is assessed for the violation.ORDERDue deliberation having been had on the whole record,it is herebyORDERED that the citation for a violation of 29 CFR? 1910.1025(k)(2)(i) is affirmed, it is furtherORDERED that abatement of the violation is to be madeconsistent with the Decision herein, it is furtherORDERED that the proposed penalty of $60.00, isaffirmed.JEROME C. DITORE JUDGE, OSHRCDated: February 14, 1983 New York, New YorkFOOTNOTES: [[1\/]] That standard provides:? 1910.1025 Lead* * *(k) Medical Removal Protection* * *(2) Medical removal protection benefits –(i) Provision of medical removal protection benefits. The employer shall provide toan employee up to eighteen (18) months of medical removal protection benefits on eachoccasion that an employee is removed from exposure to lead or otherwise limited pursuantto this section.(ii) Definition of medical removal protection benefits. For the purposes of thissection, the requirement that an employer provide medical removal protection benefitsmeans that the employer shall maintain the earnings, seniority and other employment rightsand benefits of an employee as though the employee had not been removed from normalexposure to lead or otherwise limited.[[1\/]] ? 1910.1025 Lead(k) Medical Removal Protection(2) Medical removal protection benefits –(i) Provision of medical removal protection benefits. The employer shall provide toan employee up to eighteen (18) months of medical removal protection benefits on eachoccasion that an employee is removed from exposure to lead or otherwise limited pursuantto this section.(ii) Definition of medical removal protection benefits. For the purposes of thissection, the requirement that an employer provide medical removal protection benefitsmeans that the employer shall maintain the earnings, seniority and other employment rightsand benefits of an employee as though the employee had not been removed from normalexposure to lead or otherwise limited.[[2\/]] The lead standard requires that an employeewhose blood lead level exceeds a specified concentration be removed from a work area wherethe airborne lead concentration is more than a certain amount. Since the expiration of theinitial phase-in period during which higher concentrations were permitted, the standardhas required that an employee with a blood lead level at or above 50 ug\/100g of wholeblood be removed from work having a daily eight hour time-weighted-average exposure toairborne lead at or above 30 ug\/m3. 29 C.F.R. ? 1910.1025(k)(1)(i). [This case, however,arose during the phase-in period.] The standard also requires removal if a \”finalmedical determination\” establishes that an employee has a \”detected medicalcondition which places the employee at increased risk of material impairment to healthfrom exposure to lead.\” 29 C.F.R. ? 1910.1025(k)(1)(ii)(A).[[3\/]] For that decision, this case was consolidatedwith Amax Lead Co. of Missouri, OSHRC Docket No. 80-1793, and Schuylkill MetalsCorp., OSHRC Docket No. 81-856. Because the cases no longer involve a single commonlegal question, we hereby sever them pursuant to Commission Rule 10, 29 C.F.R. ? 2200.10.[[4\/]] The administrative law judge who first heardthe case held that St. Joe was required to pay the employee for scheduled overtime, butnot for voluntary overtime because the amount of voluntary overtime was too speculative tocalculate. The Fifth Circuit’s decision holds that the standard requires payments for\”over-time,\” but the court did not expressly address the distinction betweenscheduled and voluntary overtime. We interpret the court’s decision as holding that thestandard requires payments in this case for the scheduled overtime and shiftdifferentials. We read the Fifth Circuit’s decision as leaving open the voluntary overtimeissue and we will discuss that issue later in this decision.[[5\/]] We must apply the Fifth Circuit’sinterpretation as the \”law of the case.\” See In re Progressive FarmersAss’n, 829 F.2d 651, 655 (8th Cir. 1987), cert. denied sub nom. SouthCentral Enterprise v. Farrington, 108 S.Ct. 1574 (1988). In another decision issuedtoday, East Penn Manufacturing Co., OSHRC Docket No.87-537 (Apr. 27, 1989), we haveoverruled the Commission’s decision in Amax and aligned the Commission’s interpretation ofthe medical removal provision with that of the Fifth Circuit in United Steelworkers ofAmerica v. Schuylkill Metals Corp.[[6\/]] Because she rejects the argument on itsmerits, Commissioner Arey finds it unnecessary to consider the arguments of the partiesdirected to the Commission’s authority to rule on validity challenges, the argument thatSt. Joe’s challenge is barred by collateral estoppel, and St. Joe’s contention that theSecretary untimely raised collateral estoppel issue.[[7\/]] As will be discussed later in this opinion,the Secretary was also concerned that, if excessively high blood lead levels could lead toloss of income, employees would resort to chelating drugs, which remove lead from theblood but have dangerous side effects.[[8\/]] \”United Steelworkers.of America v.Schuylkill Metals Corp., 828 F.2d at 320.[[9\/]] This Pratt & Whitney case is alater decision in the same Pratt & Whitney case on which St. Joe relies. Thesecond Pratt & Whitney decision was issued after St. Joe filed its reviewbrief.[[10\/]] United Steelworkers of America,AFL-CIO-CLC v. Marshall, 647 F.2d at 1237 & n.73.[[11\/]] Although we conclude that violations of thelead standard’s MRP provisions are serious, we do not agree with the judge’s broadstatement that \”[a]ny violation of any part of the Lead Standard which reduces orcould possibly reduce the health protection intended by the Lead Standard, is seriousbecause it could increase the risk of overexposure to lead.\” Presumably, allprovisions of the lead standard are intended to reduce the risk of lead exposure to someextent. However, for some provisions, the reduction in risk to employees may be so limitedthat a serious classification would not be justified. For example, 29 C.F.R. ?1910.1025(n) contains detailed recordkeeping requirements. Technical violations of thoserequirements would not be serious violations. See RSR Corp., 83 OSAHRC 6\/A2,11 BNA OSHC 1163, 1180, 1983-84 CCH OSHD ? 26,429, p. 33,558 (No. 79-3813, 1983)(violation of section 1910.1025(n)(4)(ii) affirmed as other than serious).[[12]] 29 U.S.C. ? 659(b) provides that theabatement period for a violation \”shall not begin to run until the entry of a finalorder by the Commission in the case of any review proceedings under this section initiatedby the employer in good faith and not solely for delay or avoidance of penalties.\”[[13\/]] In RSR Corp. v. Donovan, 733 F 2d 1142(5th Cir. 1984), the court adverted to, but did not discuss or define, \”otherappropriate relief\” in the one instance in which the Commission has issued whatamounted to a retroactive pay order: the Commission ordered a remand of certain cases fora determination of the amount of medical removal protection benefits due the employees.However, the Commission had not said that it was ordering \”other appropriaterelief;\” in fact, the Commission did not give any attention to what authority it hadto issue such an order. RSR Corp., 83 OSAHRC 6\/A2, 11 BNA OSHC 1163, 1983-84 CCHOSHD ? 26,429 (No. 79-3813, 1983). The court’s reference to that term has littleapplication here since the court was addressing only whether the Commission’s decision wasa final order from which the employer could appeal. Despite the remand for determinationof benefits due, the employer wanted court review of the foundational portions of theCommission decision — the Commission’s affirmance of the underlying citations andpenalties. The Secretary moved to dismiss the appeal on the ground that the Commission’sdecision was not final. On this the court replied, \”Only a crabbed reading of section10(c) [29 U.S.C. ? 659 (c)] would forbid review of an order that affirmed in part andmodified in part both citations and penalties simply because the issue of what other (andadditional) relief is appropriate has been remanded for determination.\” 733 F.2d at1144. The court denied the Secretary’s Motion to Dismiss. Whether the Commission hadauthority to order retroactive pay was not before the court, and the court gave thequestion no attention. Accordingly, Chairman Buckley declines to assign to the court’sdecision authority for the Commission to make individual compensatory awards.[[14\/]] There is no question that St. Joe contestedthe citation in good faith, and thus satisfied the condition established in section 659(b)for tolling the abatement date.[[15\/]] When the Commission is divided on an issueresolved by the administrative law judge, they will normally agree to affirm the judge’saction and accord it the precedential value of an unreviewed judge’s decision. St.Regis Paper Co., 84 OSAHRC 40\/D3, 11 BNA OSHC 2208, 2210-11, 1984-85 CCH OSHD ?27,032, p. 34,805 (No. 77-1385, 1984). In this case, the judge concluded that \”[a]’back pay’ retroactive money payment is the proper method of abatement to correct theviolation herein,\” and he ordered that the violation be abated consistent with hisdecision. For the reasons stated in the text, Chairman Buckley would not enter such anorder. Commissioner Arey also would not uphold the judge’s order because the order doesnot compensate the removed employee for voluntary overtime. Therefore, neither memberwould adopt the the backpay order issued by the judge.[[1]] Docket Nos. 80-1793 and 81-2267 have previously been consolidatedby order of the Commission. Because Docket No. 81-0856 involves questions of law and factsimilar to those in the other two cases, we consolidate all three cases for decisionalpurposes. Commission Rule of Procedure 9, 29 C.F.R. ? 2200.9.[[2]] The pre-1975 standard was derived from a standard issued by theAmerican National Standards Institute. The Secretary promulgated it under section 6(a) ofthe Act, 29 U.S.C. ? 655(a), which authorized the Secretary to adopt national consensusstandards as OSHA standards without notice-and-comment rulemaking proceedings within twoyears of the Act’s effective date.[[3]] In promulgating the new standard, the Secretary acted undersection 6(b) of the Act, 29 U.S.C. ?655(b), which authorizes the Secretary to promulgateoccupational safety and health standards following notice-and-comment rulemakingproceedings.[[4]] Due to feasibility constraints, certain of the standard’sprovisions, including the permissible exposure limit, are phased in over a period of time.In our description of the provisions of the standard, we have for the sake of clarity usedthose numerical values that are in effect after the standard is fully phased in. Certainof the values given were not in effect at the time the alleged violations in these casesoccurred, but this is not significant for purposes of this decision.[[5]] The words \”high\” and \”low\” are, of course,relative. For purposes of this decision, we use them to distinguish between airborne leadconcentrations from which employees with elevated blood lead levels must be removed, andconcentrations to which such employees may permissibly be exposed.[[6]] The employees Schuylkill transferred did not have blood leadlevels sufficiently high to require their removal under the standard. They did, however,have blood lead levels higher than the plantwide average. According to Schuylkill, thecompany measured the blood lead level of employees and, when a particular employee wasfound to have a level above average, the employee was observed closely to determine thecause of the increase. If it was found that the increase was due to poor hygiene habits orfailure to wear a respirator properly, the employee was transferred from the productionarea to the change house for purposes of discipline and retraining.The Secretary contends that Schuylkill was required to pay MRP benefits even though thetransferred employees did not have blood lead levels high enough to require their removal.The Secretary points to subsection 1910.1025(k)(2)(vii), which provides:Where an employer, although not required by this section to do so, removes an employeefrom exposure to lead or otherwise places limitations on an employee due to the effects oflead exposure on the employee’s medical condition, the employer shall provide medicalremoval protection benefits to the employee equal to that required by paragraph (k)(2)(i)of this section.The Secretary argues that the employees Schuylkill transferred were transferred becausethey had rising blood lead levels, that the transfers were therefore a result of theeffects of lead exposure on the employees’ medical condition, and that this sectiontherefore requires Schuylkill to pay MRP benefits to the employees. Schuylkill argues thatthe transfers were for the purpose of discipline and retraining, and not a result of theeffects of lead exposure on the employees’ medical condition. Schuylkill points to thetestimony of its plant physician that none of the employees had primary conditionsassociated with occupational lead exposure and none were at an increased risk to theirhealth if they had continued in their jobs.We find it unnecessary to resolve this dispute. Under our interpretation of the standard,even assuming Schuylkill was required to pay MRP benefits, the payments it made to thetransferred employees were adequate to discharge that obligation.[[7]] The Mine Act was subsequently amended and redesignated the FederalMine Safety and Health Act of 1977. Pub.L. 95-164, 91 Stat. 1290 (Nov. 9, 1977). Theamendments did not affect the Act’s MRP provision.[[8]] We also note that, if the Secretary intended \”earnings\”to include premium payments, his statement that he did not include such a definitionbecause it would be likely to confuse some employers is difficult to credit. About a yearafter he adopted the lead standard, the Secretary published appendices that were intendedto summarize key provisions of the standard for employees. 44 Fed. Reg. 60980 (Oct. 23,1979). Section IX of Appendix B discusses medical removal protection and states:\”Earnings includes more than just your base wage; it includes overtime, shiftdifferentials, incentives, and other compensation you would have earned if you had notbeen removed.\” Id. at 60987. The Secretary’s ability to draft such a clear andconcise definition for the information of employees suggests he could have also drafted adefinition that would not have confused employers if he indeed intended to include premiumpayments in \”earnings\” when he adopted the standard. Thus we conclude, from thefact that he did not do so when adopting the standard, that he did not intend\”‘earnings\” to include the premium payments to which he later referred in thissummarization for employees. We do not accord dispositive weight to this summarizationbecause it was not composed when the standard was promulgated and thus is not acontemporaneous explanation and interpretation. L.E. Myers Co., 86 OSAHRC__ 12 BNAOSHC 1609, 1614 n.9, 1986 CCH OSHD ? 27,476, p. 35,604 n.9 (No. 82-1137, 1986). Moreover,it is inconsistent with the history of the standard we have cited.[[9]] Amax and St. Joe argue that the lead standard is invalid and thatpromulgation of the MRP provision exceeds the Secretary’s authority. The Secretarycounters that the principle of collateral estoppel precludes the employers fromchallenging the standard’s validity in this proceeding, pointing out that the D. C.Circuit in Steelworkers rejected the employers’ validity arguments and arguing thatAmax and St. Joe were either parties to Steelworkers or were in privity withparties to that case. Because of our disposition, we need not reach either the validityarguments raised by the employers or the collateral estoppel argument made by theSecretary.[[*]] Reference key: Stip. – refers to Joint Stipulation of the Parties. ?\u00a0\u00a0\u00a0\u00a0\u00a0 – refers to paragraph of the Joint Stipulation.Exh. – refers to accompanying the Joint Stipulation.[[*]] It is interesting to note that the U.S. Supreme Court may have adhered to thisprinciple in striking down the cost benefit analysis provision of the Cotton Dust Standardbut did not in its consideration of a similar MRPB provision in that standard. 101 S.Ct.at 2491-2492 and 2504-2506.[[*]] Respondent also argues that the medical removalprotection benefits provision does not encourage the implementation of engineeringcontrols (brief pp 22-24). We do not reach this argument since the provision is found tobe health related on other grounds.[[x]] These numerical citations reflect page numbersof the \”Attachments to the Preamble to the Final [lead] Standard\” which isExhibit C(i)(b) herein.”