“Docket No. 83-1073 SECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0v.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0THERMAL REDUCTION CORPORATION,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.OSHRC Docket No. 83-1073ORDEROn December 4, 1990, the Commission issued to Thermal ReductionCorporation an order to show cause within ten (10) days why its notice of contest shouldnot be dismissed due to its continuing failure to respond to Commission orders requiringit to file the statement of corporate ownership required by former Commission Rule 91(h),29 C.F.R. 2200.91(h), (republished as Commission Rule 36(c), 29 C.F.R. 2200.36(c)), andits failure to file with the Commission the name, current address and telephone number ofits representative as required by Commission Rule 6, 29 CFR 2200.6.Thermal Reduction Corporation has failed to respond to the showcause order. Accordingly, the Direction for Review is VACATED. The judge’s decision is thefinal order of the Commission.Edwin G.Foulke, Jr.ChairmanVelma Montoya CommissionerDonald G.Wiseman CommissionerDated: January 11, 1991SECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant, v.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0THERMAL REDUCTION CORPORATION,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.OSHRC Docket No. 83-1073APPEARANCES: HOWARD K. AGRAN, ESQUIRE JANINE G. GISMONDI, ESQUIRE U.S.Department of Labor Philadelphia, PAFor the Complainant ROBERT D. MORAN, ESQUIRE Vorys, Sater, Seymour & Pease Washington, D.C.For the RespondentDECISION AND ORDERSOMMER, JUDGE:On October 12, 1983, Respondent was issued Serious Citation No. 1 alleging fiveviolations, Willful Citation No. 2 alleging five violations and Other Than SeriousCitation No. 3 alleging seven violations, with a total proposed penalty of $43,050.Hearings were held in Philadelphia, Pennsylvania. Both parties were represented by counselwho filed post-hearing briefs. Respondent challenges both (1) the OSHA inspection and asksfor suppression of the evidence obtained, and (2) the validity of the lead standard asapplied herein. He furthermore avers that the Secretary has not met his burden of proof asto the presence of the hazards alleged.[[1]]No jurisdictional issues are in dispute. I. BackgroundThermal Reduction Corporation (Talco), and its successorsoperate a foundry at 5201 Unruh Avenue in Philadelphia, Pennsylvania. Commencing in Augustor September 1982 Talco conducted a cable stripping operation at said location across thestreet from its main operations location. This consisted of stripping cables for therecovery of both copper and lead which were then further processed or shipped out.Upon receipt of a written complaint on April 5, 1983, of healthand safety violations in the plant area where the cable stripping operations wereconducted, OSHA attempted to make an inspection, but was refused voluntary admittance.Accordingly, application was made for an administrative search warrant to MagistrateWilliam F. Hall, who found probable cause existed for the issuance thereof. A warrant wasissued which limited the inspection and investigation to the following conditions asrelated in the complaint:Employees are exposed to lead from cable stripping and brickingoperations; employees have experienced elevated blood levels and symptoms of leadpoisoning. Employees with elevated blood levels are not removed from further exposure. Nolocal exhaust ventilation is provided at either operation. The loading dock is\”falling apart\”. Floors are loaded beyond capacity.II. Scope of the warrantThis motion was denied, on May 11, 1984, for reasons thereinstated which will not be reiterated. A similar motion is now made after trial which isdenied on the additional grounds that a review of the testimony confirms that the hazardsalleged in the complaint were those within the \”plain view\” of the complianceofficers, Ackerman Enterprises, Inc., 10 BNA OSHC 1709, 1712, 1982 CCH OSHD ?26,090, and bore \”an appropriate relationship to the violations alleged in thecomplaint\”. Marshall v. North American Can Co., 626 F.2d 320 (3rd Cir. 1980).III. The Lead StandardIn 1978 OSHA published notice of a proposed new standard foroccupational exposure to lead setting the permissible exposure limit (PEL) at 50 ug\/m3 andan \”action level\”[[2]] of 30 ug\/m3. In addition, because of the toxicity of airlead contamination above the prescribed levels, and to protect employees from\”material impairment of health or functional capacity,\” 29 U.S.C. ? 665(b)(5)(1976), various other rules were promulgated under the lead standard which employers weredirected to implement, i.e., written compliance programs to be established, respiratorselection, usage and program, protective clothing, hygiene and housekeeping requirements,medical surveillance program, biological monitoring, medical removal program, faceprotection etc., 29 C.F.R. ? 1910.1025. Virtually all sections of the lead standard werechallenged by industry parties both as to irregularity in promulgation and substantiveerror. In a painstaking line by line analysis of the standard, the United States Court ofAppeals for the District of Columbia Circuit in United Steelworkers of America, etc.v.Marshall, 647 F.2d 1189, upheld the OSHA standard for occupational exposure to lead.Relative to this proceeding the Court found that:5. OSHA failed to present substantial evidence or adequate reasons to support thefeasibility of the standard for the following industries: nonferrous foundries* * * The Court remanded the record to the Secretary for reconsideration of the feasibility ofthe standard for the remanded industries listed, but further adjudicated that: \”Forthose industries listed in the previous paragraph the stay of Section 1910.1025(e)(1) ofthe standard, which requires compliance with the PEL by engineering and work practicecontrols, shall remain in effect. These industries, however, shall be immediately requiredto meet the PEL of 50 ug\/m3 by some combination of engineering work controls andrespiratory controls. All other provisions of the November 1, 1979, stay are herebylifted.\”The Respondent now attempts to re-open and re-litigate thepromulgation of the lead standard and its efficacy. His brief is a litany of familiarcharges of impropriety that the Court disposed of in United Steelworkers, supra, and isrejected. Thusly, the occupational lead standard applies to this Respondent, whether itfalls in nonferrous industry or scrap metal collection and processor classification, otherthan the question still under reconsideration (feasibility of Section 1910.1025(e)(1)).IV. Alleged Violations Serious citation number 1 – item 1(a)Item 1(a) alleges a violation of 29 C.F.R. ?1910.22(d)(1)[[3]] which requires that where a structure is used for business, industrialor storage purposes the loads approved shall be marked on plates securely fixed in aconspicuous place by the owner or his duly authorized agent. This allegation must fail.There is no evidence that the Respondent was the owner of the premises, or the owners dulyauthorized agent. Frankfort Woolen Mills, Inc., 3 OSAHRC 515, 1 BNA OSHC 1236, CCH OSHD ?16,170 (1973); quoted with approval in Lee Way Motor Freight, Inc., 4 BNA OSHC 1968, 1970(1977). Additionally, there is no evidence of record demonstrating that there were\”loads approved\” by a \”building official\” which were to be\”marked on plates\”. Accordingly, Citation No. 1, item 1(a), is vacated.Serious citation number 1 – item 1(b)The Secretary contends that the Respondent violated thestandard at 29 C.F.R. ? 1910.23(c)(1) in that employees were cutting lead cable whilestanding atop of spools 82 inches high without guarding by standard rails. Section1910.21(a)(4) defines a platform as: \”A working space for persons, elevated above thesurrounding floor or ground; such as a balcony or platform for the operation of machineryand equipment.\” The evidence demonstrates that at best the compliance officer notedemployees working atop the spools on two occasions (May 12 & 17, 1983); thereafter thetestimony reveals the cable was cut by machine at the ground level with the cable beingunwound. \”An elevated flat surface does not automatically become a ‘working space’and a ‘platform’ merely because employees occasionally set foot on it while working.\”General Electric Co. v. OSHRC, 583 F.2d 61, 64 (2nd Cir. 1978).Additionally, the plainly understood meaning of the word\”platform\” is \”a horizontal flat surface usually higher than the adjoiningarea\”. [[4]] Both the definition normally accepted and the wording of the standardwould not lead a reasonable man to conclude that work activity herein was being carriedout on a platform. See Globe Industries, Inc., 10 BNA OSHC 1596, 1599 (1982). I find thatthe Secretary has not met the burden of proof that the standard applies to the citedoperation. Accordingly, the Citation No. 1, item 1(b), is vacated.Serious citation number 1 – item 2(a)Vacated during trial on motion of Secretary.Serious citation number 1 – item 2(b)The Secretary alleges that the Respondent failed to comply withthe standard at 29 C.F.R. ? 1910.110(f)(2)(i) [[5]] in that six LP gas containers werestored in aisleway used by forklift trucks and thus were subject to being \”poked orknocked over\” (Tr. 788). The protection of the standard goes to those containers thatare \”* * * filled or partially filled * * *\”. The evidence does not demonstratethat the compliance officer had actual knowledge as to what if any thing was in thecylinders. She stated \”some were empty and some were full * * *\” (Tr. 1282),without any proof other than an obvious guess. Actually, Hesser, an employee, testifiedthat the LP cylinders identified in government exhibit C-1, p. 36 (photographs) wereplaced there \”when they were empty\” (Tr. 248-9). It is apparent that there issome question as to whether these cylinders were filled, partially filled or empty. Aviolation cannot be found herein based on mere conjecture. The proof must be clear andconvincing. It cannot be presumed or inferred. Ellison Electric, 1 OSAHRC 547, 1BNA OSHC 3034, 1971-3 CCH OSHD ? 15,133 (No. 76-484, 1979). The evidence is insufficientto prove that the containers herein were in a state (filled or partially filled) requiredby the standard, and as such Citation No. 1, item 2(b), is vacated.Serious citation number 1 – item 2(c)This alleged violation similarly involves the six LP gascontainers cited above, the allegation being they were stored in an aisleway used for safeexit of employees. As previously stated, since the evidence is insufficient to prove thatthe cylinders were filled or partially filled, the application of the standard to thestate of facts shown is non-existent. Accordingly, Citation No. 1, item 2(c), is vacated.Serious citation number 1 – item 3The Secretary alleges that the Respondent failed to comply withthe standard at 29 C.F.R. ? 133(a)(1)[[6]] in that protective eye equipment was notrequired to be worn by Respondent’s employees who were exposed to eye injuries whensorting cables and stripping lead from cables. During the inspection the complianceofficer observed employees working at a stripping machine stripping cables either coveredby a plastic sheathing or sheathed in lead. During the stripping operation there was ahazard presented from flying parts of plastic which broke off; additionally, during thestripping operation the cut cable leaving the machine presented a hazard as it couldstrike the face of the operator.It was incumbent upon the Secretary to either prove that theRespondent had actual knowledge of the existence of a hazard which required the use ofpersonal protected equipment, or that a reasonable man familiar with the factualcircumstances then and there existing, knew the general practice of the industry was torequire such use.S & H Riggers & Erectors, Inc., 79 OSAHRC 23\/A2, 7 BNA OSHC 1250, 1979 CCH OSHD ?23,480, p. 28,436 (No. 15855), rev’d 659 F.2d 1273 (5th Cir. 1981). Other than thecompliance officer’s concern that flying plastic parts could become lodged in anemployee’s eye or that the cable coming through the machine could strike the employee’seye and face, there was no evidence presented that Respondent had \”specific,confirmed knowledge that there was a hazard presented which necessitated the use ofpersonal protective equipment for the eye and face. Cotter & Co., 598 F.2d 914 (7 BNAOSHC 1513), or that industry practice recognized the presence of a hazard warranting theuse of protective equipment. The Secretary has failed to sustain his burden of proof by apreponderance of the evidence that a violation of the Act occurred, and the citationalleging a violation of 29 C. F. R. ? 1910.133(a)(1) is vacated.Serious citation number 1 – item 4The Respondent was cited for a violation of 29 C.F.R.?1910.212(a)(3)(ii) for failing to guard the points of operation of two alligator shears.The alligator shear machines were being used to cut cable being fed into it the blade usesa chop motion (up & down) cutting the cable which is removed by a worker on theopposite side of the feeder. The hazard alleged is that the hands and fingers of theemployee feeding the machine can come into contact with the point of operation (as thechop blade descends on the cable) causing possible loss of fingers and severe handinjuries. The compliance officer observed that one of the machines on a previous day hadbeen equipped with a guard that insulated and protected the employee operating themachine, but on subsequent days no such guards were used (May 10, 1983, May 31, 1983, andJune 1, 1983). Both the observations of the compliance officer and the photographsintroduced vividly portrayed the hazard presented to employees operating the machines (Tr.798-806; Exh. C-1, pp. 19, 20, 21, 22, 25, 26, 27 & 37). Their hands and fingers whilefeeding the machine can be severely cut and mangled by the chopping action of the blade ifunguarded. Where as here, there is a hazard present, \”the employer must guard themachine in such a way as to prevent employees from having any part of their bodies in thedanger zone during the operating cycle, thus the standard clearly places employers onnotice of the performance it requires.\” Pass & Seymour, Inc., 79 OSAHRC 101\/C13,7 BNA OSHC 1961, 1963, n. 4. The Respondent was aware of the requirements of the standardand knew of the hazard present; not only had a guard been used on prior occasions but asupervisor was noted to be present while the operation was going on at which time themachines were in use with the required guard. Moreover, the compliance officerspecifically called to the attention of Schorsch, a management official, the hazardpresent and the absence of a guard on the machines (Tr. 1289-1290). Counsel’s contentionthat since the guard was \”provided\” there is no violation is without merit; thecitation alleged a violation because employees were subject to a hazard at the point ofoperation of the machine; the standard requires that where there is exposure to injury themachine \”shall be guarded\”. This was not the fact herein. The machine wasoperated without the guard.Accordingly, I affirm the violation alleged herein for failureto comply with the standard at 29 C.F.R. ? 1910.212(a)(3)(ii). I further conclude thatunder Section 17(j) of the Act, 29 U.S.C. ? 661(i), a penalty of $150 is appropriate.Serious citation number 1 – item 5The standard at 29 C.F.R. ? 1910.303(g)(2)(i) requires that\”* * *live parts of electric equipment operating at 50 volts or more shall be guardedagainst accidental contact by approved cabinets or other forms of approved enclosures, * **\” or means listed. The compliance officer observed that the cover of the panel boxcontaining the wires and circuits providing electricity to both a stripper and brickingmachine using 110 or 230 volts had been damaged causing all the wires etc. to be exposedand presenting a hazard to the employees operating the machines in the immediate area;employees could come in contact with live exposed electrical parts by tripping, orotherwise when they went to the box to trip the circuits (Tr. 806-808, Exh. C-1, p. 15).The evidence fully establishes the presence of a hazard and the exposure thereto ofemployees engaged in their usual work activity. This condition was fully visible tomanagement and was allowed to exist despite the hazards presented. Accordingly, thecitation for violation of 29 C.F.R. ? 1910.303(g)(2)(i) is affirmed. I further concludethat under Section 17(j) of the Act, 29 U.S.C. ? 661(i), a penalty of $200 isappropriate.Willful Citation No. 2Citation No. 2 consists of 45 alleged violations of thestandard addressing airborne lead exposure in the workplace.Willful citation number 2 – item 1(a)The Secretary alleges that the Respondent violated 29 C.F.R. ?1910.1025(c)(1) [[7]] in that employees at both the lead stripping and lead brickingoperation were exposed to lead at concentrations greater than fifty micrograms per cubicmeter of air (50ug\/m3) averaged over an 8-hour period.The exposure levels were determined by Compliance Officers Komis and Johnston on thefollowing days, May 10, May 12, May 17, May 31, and June 1, 1983. Inasmuch as Respondentrefused to cooperate in any way with the compliance officers during the investigation, andthe employees under the circumstances therein also refused to cooperate (management by itsown refusal to cooperate and its direct and indirect actions suggested and or hinted thatthere be no cooperation), the compliance officers were unable to attach the personalsampling pumps to the employees while they were working as is usually done; instead thecompliance officers were forced to place the pumps as close as possible to the employees’breathing zones and work zones so as to establish the airborne concentration of lead.Thusly, the sampling pumps were placed in various places on the bricker and strippermachines. Prior to placing the sampling pumps with filter cassettes attached on themachines, the compliance officers pre-calibrated the pumps, checked them for adequatevoltage, checked the air flow rate, etc. After the sampling pump had collected the airsamples with the time each pump had operated being recorded at its various locations, thecassettes were forwarded to the OSHA analytical laboratory in Salt Lake City to beanalyzed for lead by the inductively coupled plasma (ICP) method. The laboratory results,which were returned to the compliance officers, were used to calculate the 8-hourtime-weighted average (TWA) of exposure to air borne lead dust. The sampling was largelycarried out by Compliance Officer Komis assisted by Johnston. Both gave the distinctimpression of a full and complete knowledge of sampling techniques with prior experienceand education in the chemical and biological fields. Both compliance officers testified ina straightforward, frank and convincing manner and appeared to be truthful and honest.The findings of the air sampling done both on the bricker and stripper machinesdemonstrated the following results:THE EXHIBIT REFERRED TO ABOVE IS NOT AVAILABLE IN THISFORMAT.\u00a0 PLEASE TELEPHONE THE REVIEW COMMISSION PUBLIC INFORMATION OFFICE,202-606-5398, TO REQUEST A PAPER COPY; TTY: 202-606-5386; FAX: 202-606-5050; E-MAIL:[email protected] evidence fully demonstrates that the Respondent’s employees while carrying out theirregular duties operating both the stripper and bricker machine were exposed to lead inexcess of the limits set forth in Section 1910.1025(c)(1). There was no evidence presentedby the Respondent that the Secretary’s airborne lead findings demonstrating overexposureof employees to lead was incorrect or not typical of the workplace. The Respondent offeredno evidence at all consisting of measurements he had carried out.Respondent disputes the findings of employee overexposurealleging that Section 1910.1025(c)(1) should be interpreted to include exposure findingswith respirator usage, and furthermore the Secretary failed to demonstrate either that theRespondent knew of the hazard presence or that there was a hazard present. There is nomerit to these contentions. Section 1910.1025(c)(1) sets a permissible exposure limit of50 ug\/m3 as an 8-hour TWA. The standard by its plain terms informs the employer of thehighest level of airborne lead an employee may permissibly be exposed, and directs that\”the employer shall assure\” no exposure to greater combinations; immediatecompliance is the obligation of the employer whether by a combination of engineeringcontrols, work practices (including administrative controls), or respirators. Thusly, thesection is violated by a failure to meet the PEL irrespective of the methodology, if any,actually used by the employer to reduce airborne lead exposure. Furthermore, Respondent’scontention that the exposure testing requires the findings resulting with use ofrespirators is not worthy of comment and totally irrelevant under the existing facts andcircumstances. Since the Respondent by its action and non-cooperation in the investigationfostered similar responses from its employees, the compliance officers were forced toplace the testing pumps on the machinery, not on the employees where they usually are.Thusly, whether the employees wore respirators during the testing is immaterial and wouldnot change the findings.Similarly, Respondent’s allegation that there is no proof thatit was aware of the presence of a hazard, or that its employees were exposed thereto iswithout foundation. \”An employer has the duty to exercise reasonable diligence todiscover conditions that violate the Act and the standards promulgated pursuant thereto.If an employer knows that a regulated air contaminant is present in its facility,reasonable diligence requires that it measure the amount of the contaminant to determinewhether it is present in an excessive amount.\” General Electric Co., 81 OSAHRC 42\/A2,9 BNA OSHC 1722, 1981 CCH OSHD ? 25,345 (No. 13732, 1981). The Respondent knew that thelead recovery operations conducted created airborne lead contamination, and that therewere OSHA regulations regulating such lead. In 1981 during an OSHA investigation theRespondent was informed of the presence of lead arising out of its operations, and in aletter dated September 1, 1981, was told \”it is strongly recommended that these areasbe evaluated for employee exposure to lead\” (Exh. R-7). The compliance officer whowas part of the 1981 investigation personally told a Respondent official of the OSHA leadstandard requirement (Tr. 1374). Prior to the investigation which is involved herein theRespondent was made aware of the lead related illness of a number of their employees. Dr.McGraw, the physician at the Exide Industrial Hygiene Laboratory, who performed bloodsampling of Respondent’s employees for lead exposure, testified in a deposition that headvised the Respondent early in 1983 to have the plant surveyed in order to determine whatneeds be done \”to control lead in air levels\”. In short, the Respondent wasfully aware that its lead operation was a source of lead contamination, that there is adanger of lead poisoning to employees working in such areas, and that there were specificOSHA regulations concerning occupational airborne lead. They did not exercise normaldiligence and care required of an employer with knowledge as aforesaid. They did notmonitor nor in any way measure the lead contamination present in the workplace thoughknowledgeable thereof.Further, the allegation that there was no hazard to employeesdemonstrated or as counsel in his brief calls \”employee endangerment\” isludicrous. As the Court stated in United Steelworkers of America v. Marshall, supra,\”We do know that in the United States today, where industry consumes annually overone million tons of lead, at least 800,000 workers, representing 120 occupations in over40 industries, are exposed to airborne lead on the job and thereby face the dangers oflead poisoning.\” The record amply demonstrates the significant hazards of toxic leadpoisoning faced by Respondent’s employees working at the bricker and stripper machinesbecause of the presence of higher airborne lead contamination. The Court in UnitedSteelworkers of America, supra emphasized that, \”In creating the new lead standard,OSHA has clearly met the Section 3(8) threshold test of proving ‘significant harm’ * **.\” It is concluded that the Respondent violated 29 C.F.R. ? 1025(c)(1).Willful citation number 2 – item 1(b)The Respondent was cited for violating 29 C.F.R. ?1910.1025(e)(1) and\/or 29 C.F.R. ? 1910.1000(e)(1)[[8]] in that it failed to implementengineering and work practice or administrative controls to reduce excessive levels ofairborne lead to which employees were exposed. Since the evidence is unclear whetherRespondent is engaged in secondary lead melting (which the Court stated feasibility of thelead standard was demonstrated) or either in the nonferrous or collecting and processingscrap lead industry (where feasibility not established and remanded for furtherconsideration) the alleged violation of Section 1910.1000(e) will be considered instead ofSection 1910.1025(e)(1). This section applies to lead contamination as alleged herein. OnMay 10, 1983, the compliance officer found contaminated lead air levels at the bricker andsmall stripper measuring over 200 ug\/m3, specifically 268 ug\/m3, 355ug\/m3, and 812 ug\/m3. The testing was carried out and the resultstime weighted for an 8-hour period. Considering the high level airborne lead found in theshort testing period, it is reasonable to conclude that over an actual 8-hour period ofmonitoring (the normal workday), it could reach even higher limits of contamination. Thecompliance officer observed no engineering and administrative or work controls in effect.She stated that feasible methods for reducing the lead exposure levels includedinstitution of more effective work practices such as wet methods to reduce airborne dust,use of a dust collecting system (duct work to remove contaminants via air movement throughappropriate fans). She said these methods were successfully in use elsewhere. Thetestimony of Charles H. Stevens, a professional engineer with experience in industrialhygiene ventilation systems and dust and fume control, established there are feasiblemethods for effectively reducing the excessive airborne levels of lead at the Respondent’sworkplace to acceptable limits.Specifically, he testified that engineering controls such as acable processing system, a brushing machine system, and a local exhaust ventilation usinghooded enclosures could be put into operation. Good housekeeping practices utilizing acentral vacuum cleaning system, as well as a daily routine of good housekeeping would alsoreduce airborne lead levels. Mr. Steven’s testimony which was entirely credible wasunrebutted. The Respondent produced no evidence to demonstrate the unreliability of theexpert’s testimony or that it was financially detrimental. The evidence substantiates aviolation of 29 C.F.R.? 1910.1000(e)(1).Willful citation number 2 – item 1(c) through 1(k)These items allege non-compliance with various respiratorstandards.[[9]]Item 1(c) alleges that respirators required under the section were not selected from TableII as required. Specifically, an employee operating the bricker on May 10 was using ahalf-mask, air purifying respirator not equipped with a high efficiency filter. Theevidence shows that said employee while working the bricker was exposed to airborne leadtime weighted of 812 ug\/m3 averaged 8 hours. Since the standard requires theuse under those circumstances of a full facepiece, air-purifying respirator with highefficiency filters, the standard was violated. The Respondent’s contentions are again that(1) Respondent did not know of air contamination in excess of permissible limits; (2) noemployee was connected with the hazard on May 10; and (3) that Respondent was under noobligation to instruct or implement engineering or work practice controls, and furthermoreno employee had requested a respirator, are all rejected.\u00a0 As previously statedRespondent knew or should have known of the dangers inherent in working with lead.Moreover, his previous knowledge of the presence of lead in the workplace, the illnessattributed to lead toxicity of some employees, the warnings and information given to himby both Dr. McGraw and the health investigator from the City of Philadelphia, all calledattention to the serious airborne lead contamination present, and that the contaminationwas at a level exceeding permissible limits. In short the totality of the evidencedemonstrates knowledge of the non-complying conditions. Furthermore, the testing carriedout by the compliance officer on May 10 near the bricker fully showed that an employeeworking there was exposed to 812 ug\/m3 on a TWA of 8 hours. Under the UnitedSteelworkers case, the Respondent (assuming it belonged to a remand industry) was required\”to meet the PEL of 50 ug\/m3 by some combination of engineering, workpractice and respirator controls\”. The preponderance of the evidence sustains aviolation of 29 C.F.R. ? 1910.1025(f)(2)(i), and it is affirmed.Item 1(d) alleges a violation of 29 C.F.R. ?1910.1025(f)(3)(ii) in that the respirators issued to employees were not properly fitted.The evidence demonstrates that the respirators were assigned by supervisors to employeeswith no fitting of any sort. They were given instruction data which came with therespirators and left on their own; this reliance on an employee to read the instructionsand then wear the respirator is not in compliance with the standard. The responsibility ison the employer to see that fit tests are made. He cannot delegate it to the employees.All the employees who testified affirmed no fitting of the masks were carried out by theRespondent. Accordingly, the Respondent violated 29 C.F.R. ? 1910.1025(f)(3)(ii).Item 1(e) alleges a violation of 29 C.F.R. ?1910.1025(f)(4)(i) in that no respiratory protection program was established. Withoutgoing once again over the total lack of response of the Respondent to his responsibilitiesunder the lead standard, the evidence fully demonstrates from both the testimony of thecompliance officer and the employees that a \”minimal acceptable program\” forrespiratory protection was not carried out. Among others there were no written standardoperating procedures for use and selection of respirators; no selection of respirators onthe basis of hazard exposure; no instructions in proper use by the employees; nor werethey informed of respiratory limitations, surveillance of work conditions, and degree ofemployee exposure was lacking, etc. In short, the evidence fully shows that the Respondentfailed to comply with the requirements set forth in Section 1910.134(b) dealing with aminimally acceptable program. The Respondent’s failure to respond to a subpoena requiringthe production of evidence concerning a training program, etc. raises an inference thatnone was in existence and further re-affirms the total evidence that there was a failureto comply with Section 1910.1025(f)(4)(i).Accordingly, the item is affirmed.Items 1(f), 1(g), 1(h), 1(i), and 1(j) all relate to a failureto comply with the standard at Section 1910.134(b) which requires a \”minimallyacceptable program\” for respiratory protection. Under Section 1910.134(b) writtenstandard operating procedures governing the selection and use of respirators must beestablished. The compliance officer testified that none were in existence, which wasaffirmed by the employees. The Respondent produced no evidence that any such program ofwritten procedures was in existence other than receiving the respirators with writtenmanufacturer’s instructions which came with the box. Employees were not instructed andtrained in respirator use and told of their limitations as required by Section1910.134(b)(3). Section 1910.134(b)(5) requires regular cleaning and disinfecting ofrespirators. The compliance officer learned from the employees that for periods of timethere was no hot water to clean the respirators with, she observed no disinfectant, andwas told by some employees the respirators were taken home and just \”rinsed.\”Under Section 1910.134(b)(6) respirators are required to be stored in a \”convenient,clean and sanitary location.\” This was lacking herein. The compliance officertestified that employees interviewed had stated there was no separate locker provided forwork clothing (contaminated) and street clothing and thus the respirators were stored in acontaminated locker. She saw no separate area to store respirators after cleaning. UnderSection 1910.134(b)(7) respirators used routinely should be inspected during cleaning.Again employees testified no such program was carried out. All these Sections of1910.134(b) relating to a respirator use, cleaning inspection program were not adhered toby the Respondent. Both the testimony of the compliance officer and the employees and thefailure of the Respondent to demonstrate the program existence (it failed to respond toadministrative subpoenas setting forth its program) attests to its violation of therespirator standards. Accordingly, violations of the respirator standards in Section1910.134(b)(1), (3), (5), (6), and (7) as charged are affirmed.Item 1(k) alleges a violation of 29 C.F.R. ? 1910.134(e)(5)(i)in that employees wearing the respirator had beards which prevented a good seal causingleakage. The compliance officer testified she observed employees with beards wearingrespirators. The standard specifically faults such practice stating \”respiratorsshall not be worn when conditions prevent a good seal,\” and one such condition is agrowth of beard. Accordingly, this item is affirmed.Willful citation number 2 – item 1(1)This item alleges a violation of Section 1910.1025(h)(1) inthat surfaces were not maintained as free as practicable of accumulations of lead. Wipesamples taken by the compliance officers demonstrate the presence of lead dustaccumulation on surfaces such as the strippers, brickers, lunch table and card table inlunchroom, etc. Since the Respondent had no program whatsoever whether by engineeringcontrols, administrative controls including work practices or housekeeping to control leaddust accumulation in its entire working or eating areas it was therefore doing absolutelynothing to maintain as free as practicable the accumulation of lead. Accordingly, the itemis affirmed. Willful citation number 2 – item 1(m)Item 1(m) alleges a violation of Section 1910.1025(h)(2)(ii) inthat shoveling, sweeping or brushing methods were used to remove lead accumulation wherevacuuming or other equally effective methods were available and feasible. The evidencethrough the testimony of the employees reveals that a dry broom was used to shovel andsweep the accumulated dust and trash. The testimony of the compliance officer affirmedthat this was improper and that a vacuuming system could have been used or a wet system ofcollecting lead dust which was entirely feasible under the existing circumstances. Thetestimony of Stevens, the industrial hygiene engineer, verified that such methods werefeasible, among others. Accordingly, the citation is affirmed.Willful citation number 2 – item 1(n)This item alleges a violation of Section 1910.1025(i)(1) inthat employees were exposed to lead in excess of PEL without regard to use of respiratorswhere tobacco products were present. Lead sampling conducted by the compliance officer onMay 12, 1983, at the small stripper revealed a PEL of 254 ug\/m3, 110 ug\/m3at the large stripper, and on May 17, 1983, there was a PEL of 116 ug\/m3 and56.6 ug\/m3 at the large stripper, all above the permissible exposure limit. Thecompliance officer observed an employee removing a cigarette from his jacket which washanging in this contaminated area where he was working, and thereafter smoking it.The cigarettes were thereby exposed to lead contamination and a hazard to employees. Sincethe compliance officer was prevented from placing the sampling pumps on the employees asis usual, the test findings were without regard to the use of respirators and perfectlyacceptable under the standard. Accordingly, item 1(n) is affirmed.Willful citation number 2 – item 1(o)Item 1(o) alleges a violation of Section 1910.1025(i)(2)(i) inthat clean change rooms were not provided for employees exposed to lead above the PELwithout regard to use of respirators. Hereto the compliance officer took wipe sampleswhich demonstrated lead contamination in the locker room. There were contaminated soiledclothing and the water fountain was contaminated with lead findings above the permissiblePEL.Accordingly, item 1(o) is affirmed. Willful citation number 2 – item 1(p)Item 1(p) alleges a violation in that change rooms were notequipped with separate facilities for work and street clothes to prevent contamination.The testimony of both the compliance officer and the employees verifies that at best eachemployee had one locker wherein both street clothes and contaminated work clothes werestored. No provision was made for separate facilities. This item is affirmed.Willful citation number 2 – item 1(q)This item alleges no shower facilities were provided foremployees exposed to excessive lead. The compliance officer saw no such shower facilities,and the employee testimony amply reveals there were none in the annex building whereinthey worked. Additionally, none reported taking a shower at the workplace nor were showerfacilities provided. This item is affirmed.Willful citation number 2 – item 1(r)Item 1(r) alleges this Respondent failed to provide lunchroomfacilities that had temperature controlled, positive pressure and filtered air supply forits employees working in the lead operation. The evidence demonstrates the lunchroom was aconverted former supervisor’s office which contained a plywood table with a top ofcardboard and a refrigerator. The compliance officer found the room \”very, veryunsanitary and very dirty.\” The room did not have the required controls. Accordingly,this item is affirmed.Willful citation number 2 – item 1(s)This item alleges a violation of Section 1910.1025(i)(4)(iii)in that employees exposed to excess lead were not required to wash their hands and faceprior to eating, drinking, smoking, etc. The standard states that the \”employer shallassure. . . \” that exposed employees wash their hands and face prior to eating, etc.To assure means to \”make certain\”.[[10]] Although the Respondent had a flyerdated April 11, 1983, which stated among others that \” 4. Employees must wash handsand face before eating and drinking anything\”, the compliance officer observed anemployee eating and drinking on May 10 without washing beforehand. This occurrence wasalso witnessed by a management official. Thusly, management was aware of the hazard andemployee exposure and allowed it to continue. The compliance officer further noted she hadseen similar acts performed after May 10. The evidence demonstrates a violation of thisstandard. The violation is affirmed.Willful citation number 2 – items 2(a)-2(e)These items alleges violations of the standard dealing with theprotective work clothing and equipment.[[11]] Item 2(a) alleges a violation of 29 C.F.R.? 1910.1025(g)(2)(i) in that daily changes of clothing were not provided to employeeswhose lead exposure was above the PEL. The compliance officers’ air sampling revealed thaton May 10 and 12, 1983, both at the stripping and bricking operations, there was leadcontamination above the PEL (in excess of 200 ug\/m3). The evidence reveals thatchanges of work clothes were provided only two or three times a week. Accordingly, theviolation is affirmed. Once again the Respondent alleges that the statute is violated onlyif the employee is exposed without regard to use of respirators. He alleges the respiratorprotection factor must be counted. However, since the Respondent prevented the investigator from properly sampling thecontamination present, he is in no position to allege deficiencies. Moreover, theprovisions do not call for the use of respirators.Item 2(b) alleges a violation of 29 C.F.R. ?1910.1025(g)(2)(ii) in that the Respondent did not provide cleaning, laundering ordisposal of the protective clothing required by paragraph (g)(1). As stated previously,such clothing was not provided daily as required, and thereby under the standard wouldrequire daily cleaning. Here it was provided two or three times weekly, but only cleanedonce a week, a violation of the spirit and intent of the standard which requires and looksfor the utmost cleanliness and freedom from lead dust to protect employees. By failing toprovide daily clean clothing employees were forced to work with lead contaminated clothing(if they took it home to clean as some did then the contamination was passed into thehome), and were exposed to airborne lead contamination. The Respondent who furnished theclothing and cleaning services knew or with diligence should have known of the hazardspresent in not supplying the necessary changes of clothing and daily cleaning, laundering,etc. This violation is affirmed.Item 2(c) alleges a violation of 29 C.F.R. ?1910.1025(g)(2)(iv) in that protective clothing was not required to be removed in thechange room provided at the completion of the workshift. The standard states that\”The employer shall assure that all protective clothing is removed at the completionof a work shift only in change rooms prescribed for that purpose. . . . \” To\”assure\” [[12]] means to make sure or certain. The evidence shows that a numberof employees took contaminated work clothes home which was both a hazard to employees andcould cause household contamination causing family contamination. This was directly whatthe standard means to protect against. The obligation placed on the Respondent wasdefinite and unequivocable. It failed to carry out its responsibilities. It knew or shouldhave known that the violation was being carried out. Supervisors who were present at theend of the work-shift observed employees leaving wearing contaminated work clothes, andwho apparently did nothing. This citation is affirmed.Item 2(d) alleges a violation of 29 C.F.R. ?1910.1025(g)(2)(v) in that contaminated protective clothing to be cleaned, laundered, ordisposed of was not placed in a closed container, while item 2(e) requires such containersto be labeled with a cautionary message spelled out. The compliance officer observed acontainer with soiled protective clothing which was not closed and did not have thecautionary label required. The Respondent, therefore, was in direct violation of thespecific direction of the standard. This was in open view of employees and supervisors.The Respondent, therefore, had ample notice thereof. Items 2(d) and 2(e) are affirmed.Willful citation number 2 – items 3(a) through 3(g)Items 3(a) through 3(g) allege a violation of the standarddealing with medical surveillance (29 C.F.R. ? 1910.1025(5)). [[13]] The Respondentalleges that the effective date of Section 1910.1025(5) is June 29, 1981, the date whenthe U.S. Supreme Court denied certiorari in the United Steelworkers case. This ismanifestly wrong. The stay was lifted in the Circuit Court except for 29 C.F.R. ?1910.1025(e)(1) (only as to certain listed industries). The effective date of Section1910.1025(5) is March 1, 1979, (certain paragraphs have slightly later dates).The Respondent is charged with failure to institute a medicalsurveillance program pursuant to Sections 1910.1025(j)(1)(i), 1910.1025(j)(2)(i),1910.1025(j)(2)(ii), 1910.1025(j)(2)(iv), 1910.1025(j)(3)(i)(A), 1910.1025(j)(3)(i)(B),and 1910.1025(j)(3)(i)(C). The Respondent was required to institute the program whereemployees are or may be (underlying added) exposed above the action level for more than 30days per year. Thus, where the circumstances showed a possibility of such overexposure,the surveillance program was required. The Respondent knew or should have known there waslead contamination in his workplace and a reasonable man would have measured the airbornelead to determine what employee exposure was. The lead standard requirements were calledto management’s attention previously. The compliance officer found the airborne leadcontamination was over the action level on many days both at the bricker and stripper (May10, May 12, May 17, May 31, and June 1, 1983). The compliance officer found no medicalsurveillance program in effect during the course of her investigation, and theRespondent’s employees confirmed no such program was in existence. Respondent’s allegationthat there must be proof of such contamination for more than 30 days is rejected. Theprogram is required where there is a reasonable expectation of exposure for over 30 days;here one could expect the bricking and stripping operations (a major activity) to continuefor over 30 days with continuing airborne contamination as found. Absent the requiredmedical surveillance program as required, the violation is affirmed.Under item 3(b) Respondent is charged with violating Section1910.1025(j)(2)(i) which requires biological monitoring in the form of blood sampling andanalysis for lead and zinc protoporphyrin levels. The standard is specific as to the testrequired. The evidence demonstrates that there was no blood sampling and analysis carriedout for zinc protoporphyrin levels. While some limited blood tests were performed for leadlevels (which was discontinued rapidly), the failure to perform the above listed test is aviolation of the standard per se and a violation of Section 1910.1025(j)(2)(i) isaffirmed.Item 3(c) alleges a violation of Section 29 C.F.R. ? 1910.1025(j)(2)(ii) in that afollow-up blood sampling test was not provided within two weeks after an employee’sinitial blood lead level test revealed it was in excess of the numerical criterion formedical removal under paragraph (k)(1)(i). Under this paragraph such follow-up test mustbe carried out where the blood lead level is at or above 60 ug\/100 g of whole blood. (Thisis the level required beginning with the third year following the effective date of thestandard which was March 1, 1979.) The evidence demonstrates that on March 9, 1983, theRespondent had blood testing done on its employees by Exide Industrial Hygiene Laboratory,and the results were reported on March 11, 1983. The analysis demonstrates that at leastthree employees had a test level at or above 60 ug\/100g (Mottershead, Perillo, andAlfredson). The evidence shows that no blood lead level testing was carried out on thesethree employees within the required two-week period although they had levels above thecriteria set. Accordingly, the Respondent violated Section 1910.1025(j)(2)(ii) of thestandard, and it is affirmed.Item 3(d) alleges a violation of 29 C.F.R. ?1910.1025(j)(2)(iv) in that employees whose blood lead levels exceeded 40 ug\/100 g werenot notified in writing thereof, and were not told that the standard requires temporarymedical removal with MRP benefits where the blood lead level exceeds the criterion set inthe standard. The evidence demonstrates that the first blood level tests were available tothe Respondent from the Exide Laboratory on March 12, 1983, and under the standard thoseemployees exceeding 40 ug\/100 g should have been notified in writing within 5 days. Thetestimony of both the compliance officer and a number of employees substantiates that nosuch notification was made. The Respondent failed to respond to an administrative subpoenademonstrating the presence of such documents. It provided Exhibit C-11 which lists nonames therein to identify the employees. Another document submitted (Exh. C 2) has an Nsymbol next to a number of employees and not their numerical blood lead level as required.From hearing the testimony of the compliance officer and the employees who were believableand appeared truthful together with no evidence of compliance by this Respondent, it isapparent that no such required testing was given to employees; and furthermore, thetestimony reveals that no employee was given information regarding the MRP program.Accordingly, the violation is affirmed.Item 3(e) was vacated at the trial.Item 3(f) alleges Respondent violated 29 C.F.R. ?1910.1025(j)(3)(ii)(B) in that it did not provide employees a medical examination andconsultation prior to assignment to an area where the airborne lead concentration was ator above the action level. The compliance officer testified that she found no evidence ofemployee medical examination or consultations prior to working in the lead contaminatedareas, and this is verified by those employees who testified. The record amply shows therewere no such medical examinations given as required. The Respondent violated Section1910.1025(j)(3)(ii)(B) as alleged.Item 3(g) alleges a violation of 29 C.F.R. ? 1910.1025(j)(3)(i)(C) in that medicalexaminations and consultations were not made available as soon as possible to employeescovered under paragraph (j)(1)(i) upon notification by an employee that he has developedsigns and symptoms associated with lead intoxication, etc. The evidence shows that atleast two employees (Celmer and Switz) developed symptomology associated with leadintoxication (Celmer being hospitalized therefor), and reported it to their supervisor.However, Respondent did not at any time make medical examinations or consultationsavailable as required. The Respondent failed to follow a direct obligation imposed by thestandard. Accordingly, this item is affirmed.Willful citation number 2 – items 4(a) through 4(c)These items allege violations of the standard dealing withmedical removal protection (MRP). [[14]] The Respondent was cited for violating 29 C.F.R.? 1910.1025(k)(1)(i)(c) for failure to remove employees exposed to lead above the actionlevel whose blood lead level was at least 60 ug\/100 g. The record fully proves that atleast nine employees were exposed to lead at a level above the statutory allowance, yetthe Respondent failed to carry out as \”unequivocable obligation\” to both informthe employees of their MRP rights and to remove them from exposure to the lead (Exh.C-12). Accordingly, the violation of 29 C.F.R. ? 1910.1025(k)(1)(i)(C) is affirmed.The Respondent was cited for violating 29 C.F.R. ?1910.1025(k)(2)(i) for failure to provide MRP benefits to employees removed because ofexposure to lead. The Secretary alleges employees Celmer, Cosby, Switz, and Smith areentitled to such benefits. The record shows Celmer commenced work at the plant in November1982, became ill thereafter necessitating hospitalization from March 4, 1983 – March 12,1983, at St. Mary’s Hospital; among others the diagnosis was lead poisoning and it wasrecommended he be removed from the source of the lead contamination (C-21, C-51). OnAugust 23, 1983, he was notified by the Respondent to report for work on August 29, 1983,where he would be working in a lead-free area in the main plant. Celmer testified he wentto the plant a few days earlier \”to sign for my check\”, and \”I went to seethe no leaded area.\” He saw boxes of lead in the walkway to the offices and on theload platform, and pointed these out to a company employee with him at the time saying,\”I’m leaving, sorry.\” His testimony reveals that he did not know where he wouldbe working. Apparently because of his concern about lead and the problems it had causedhim, he abruptly left. The evidence does not demonstrate that the Respondent was not goingto assign him to a non-lead area job; he merely presumed this to be so. His unilateraldecision to leave based on a lead phobia, while reasonable to Mr. Celmer, can not form thebasis for a violation of the MRP provisions against Respondent. Accordingly, at most theRespondent was liable for MRP benefits through August 29, 1983, the date it acknowledgedit was prepared to give him a lead free job.Cosby commenced work in September 1982 and became ill somemonths thereafter; blood lead level testing on March 9 and March 24, 1983, showed levelsof 101 and 103 respectively (C 12). On April 10, 1983, his doctor reported a blood leadlevel of 99 ug\/100 g and was told he could not work around lead. He was hospitalized fromApril 19 – April 26, 1983, with a final diagnosis of lead toxicity. He informed theRespondent of his illness and treatment and the need for a lead-free job which was notforthcoming being been told that \”there was no lead free jobs there\” (Tr. 1726).The evidence is persuasive that Respondent did not offer Cosby any lead-free jobs noradvise him of any of his MRP rights. The Respondent as stated had no medical surveillanceprogram as found under Section 1910.1025(k). His removal from a lead-free job by hisphysician accordingly would constitute a \”final medical determination,\” since noother mechanism under the medical surveillance provisions were instituted. Under thestandard his MRP rights must continue for a period of up to 18 months. Having failed toprovide such benefits to Cosby, Respondent violated Section 1910.1025(k)(2)(i).Smith, an employee since September 1982, had two elevated bloodlevel tests in March 1983, and was hospitalized with lead poisoning from April 21 – April28, 1983. Upon discharge his doctor informed him he could not work around lead, and upondiscussing this with Respondent’s foreman was advised, \”that was definitely out ofthe question.\” The evidence demonstrates that this employee suffered from leadpoisoning, had two or more blood lead levels which showed lead toxicity, and hereto nomedical surveillance program being in effect was given no advice, treatment or examinationby Respondent as required. Under the standard he was entitled to MRP benefits; andaccordingly, the Respondent violated Section 1910.1025(k)(2)(i).Switz, an employee since May 19, 1983, had elevated blood leadlevel both on May 26, 1983, (66 ug\/100 g) and on June 1, 1983, while hospitalized (66ug\/100 g). He was hospitalized from June 1 to June 3, 1983, with a final diagnosis of leadintoxication (C-36). Upon discharge he was advised by his physician not to be around lead,which he relayed to Respondent’s foreman who said, \”we don’t have a lead freeatmosphere available\”. He did not work for the Respondent thereafter, and thinks hewas terminated, \”but he didn’t come out and tell me\”. Under the standard Switzwas entitled to MRP benefits because of his removal from exposure to lead, and failing todo so, the Respondent violated Section 1910.1025(k)(2)(i).The Secretary is directed to submit adjusted computations ofMRP benefits due from Respondent to employees Joe Celmer, Warren Cosby, Abb Smith andRobert Switz. Such interest, if applicable (in all cases except Celmer whose entitlementextends only to August 29, 1983), should be brought up to date of decision.The Respondent was cited for violating 29 C.F.R. ?1910.1025(k)(2)(iv) for failing to provide MRP benefits pending disposition of a claimfrom workers’ compensation payments. The evidence shows that not only were no MRP benefitspaid pending the workers’ compensation claims filed by the above former employees, but noMRP benefits were ever paid. Accordingly, the Respondent violated the standard at Section1910.1025(k)(2)(i). Respondent’s allegation that Cosby or any other employees were not\”removed\” is rejected. The spirit and intent of the lead standard is to see thatemployees subject to lead toxicity be removed from such environment. Where, as hereRespondent fails to carry out any of the lead standards, employees in danger and advisedby physicians to seek a non-lead atmosphere or suffer peril to their health are\”removed\” under the standards and entitled to whatever benefits conferredthereby.Willful citation number 2 – item 5(a)The Respondent was cited for an alleged violation of 29 C.F.R.? 1910.1025(d)(2) [[15]] in that it did not monitor whether any of its employees wereexposed to lead at or above the action level. There is no need to repeat the previousfindings that Respondent knew or should have known of the lead hazard present in itsoperation. The record shows it did not monitor the airborne lead present, nor in any waymeasure what exposure, if any, its employees were subjected to. The compliance officers’tests demonstrating toxic airborne lead above the action level were in no way demonstratedto be an error. The Respondent violated this standard and it is affirmed.Willful citation number 2 – item 5(b)This item alleges a violation of 29 C.F.R. ?1910.1025(e)(3)(i) in that a written compliance program to reduce lead exposure solely bymeans of engineering and work practice controls was not established and implemented.[[16]]Since the Court in the United Steelworkers case remanded for further consideration thefeasibility of engineering and work controls for certain industries of which Respondentmay be one, he was not under an obligation to have a written compliance program while thereconsideration was pending. Accordingly, this item is vacated. Willful citation number 2- items 5(c) – 5(f)These items alleges that the Respondent failed to provideemployees with the information and training (including training materials) required by 29C.F.R. ? 1910.1025(l)(1)(i), (l)(1)(ii), (l)(1)(iii), and (1)(2)(i).[[17]] The testimony of both the compliance officer and theRespondent’s employees established conclusively that the Respondent utterly failed in hisresponsibility to supply training and information to his employees regarding the healthhazards associated with lead exposure, did not inform them of content of the lead standardand its appendices, purpose of the medical surveillance and medical prevention program,nor did he make any copies or knowledge of the lead standard available to them.\u00a0 Inshort, the Respondent did not carry out any of the specific obligations the standards at29 C.F.R. ?1910.1025(l)(1)(i), (l)(1)(iii), and (l)(2)(i) require, and all violations areaffirmed.\u00a0 The usual Respondent allegations that he had no notice of a harzard, thatthe effective date of the standard precludes any findings of a violation, that thestandard does not apply to here, etc. are without merit. Willful citation number 2 – item 5(h) through 5(k)These items allege violations of the recordkeeping requirementsunder the lead standard [[19]] (paragraph n). \”The standard at ‘n’ requires employers…. the keep detailed records on environmental monitoring in the workplace and onbiological monitoring and medical surveillance of individual workers…\” UnitedSteelworker case, supra , at p. 1206.\u00a0 It suffices to say that theRespondent\u00a0 utterly failed to keep records required by the standard regarding theexposure monitoring of his employees, nor any records pertaining to medical surveillance.\u00a0 He was required to carry these out inasmuch as his employees were\”subject\” [[20]] to illness from lead toxicity under their work circumstances.\u00a0 His response that if he had no medical monitoring or surveillance program he needkeep no records is without merit and farcical.The evidence of both the compliance officer and Respondent’semployees demonstrates the recordkeeping of the Respondent was almostnil, and failed tocomply with the requirement of 29 C.F.R. ? ?1910.1025(n)(2)(i0, 1910.1025(n)(2)(iii) and1910.1025(n)(3)(i).\u00a0 Accordingly, the violations as charged are affirmed.V. Alleged WillfulnessThe Secretary has characterized citation number 2 which allegesviolation of various parts of the lead standard (29 C.F.R. ? 1910.1025) as willful. To establish that a violation was willful, the Secretary mustprove that it was committed with an intentional disregard of or a plain indifference tothe requirements of the Act. Asbestos Textile Co., Inc., 84 OSAHRC, 12 BNA OSHC1062, 1984 CCH OSHD ? 27,101 (No. 79-3831, 1984); Duquesne Light Co., 84 OSAHRC23\/02, 11 BNA OSHC 2033, 2040, 1984 CCH OSHD ? 26,959, p. 34,603 (No. 79-1682, 1984);The Ensign-Bickford v. OSAHRC, 717 F.2d 1419 (11 OSHC 1657) (D.C. Cir. 1983).The record sustains the conclusion that the lead standardviolations committed by the Respondent demonstrate \”plain indifference to\” andan intentional disregard of the standard.The Respondent had actual and constructive knowledge of thelead standard and his duties and responsibilities thereunder, the hazards associated withairborne lead contamination, and that employees were becoming ill as a result of leadtoxicity. Despite this knowledge, Respondent totally disregarded his duty under thestandard, showing a callous indifference to employee safety and health and a blatantdisregard of the requirements of the standard.The record shows that in a 1981 inspection by OSHA at itsfoundry site (opposite the area involved herein) the Respondent was informed by letterthat while no airborne exposure to lead was revealed, wipe samples did show leadcontamination in a number of locations; it was \”strongly recommended that these areasbe evaluated for employee exposure to airborne lead, and that \”Based upon the resultsof sampling the appropriate provisions of the lead standard (1910.1025) must be compliedwith\”. Furthermore, Compliance Officer Johnston orally told Nicholas Schorsch, anofficer of Respondent of \”some aspects of the lead standard so that they were awareof what the possible ramifications would be in terms of employee exposure\”. TheCompliance Officer stated that he recalled talking of \”the various requirements interms of monitoring, medical surveillance and training, of the need for hygiene facilitiesin lunch rooms …. I recall basically it was a summary of the lead standard ….\”Further knowledge by the Respondent of the lead standard and\/or air level lead problems isindicated by the testimony of Charles H. Stevens, an industrial engineer, who related thatin 1982 one of his employees had been asked to visit the Respondent’s plant and \”givesome advice as to what they could do to improve air and lead levels\”. The individualconsulting with the Stevens’ employee was Nicholas Schorsch. There was undisputed evidencethat \”Fedderman,\” \”Thalheimer,\” and \”Vucin\” knew or weretold of employee illness from lead toxicity arising out of overexposure to leadcontamination while working at the lead cable stripping operation. Nevertheless, thesesupervisors continued to require the employees to work where there was overexposure toairborne lead; although knowing of the presence of air lead contamination, the supervisorsdid not take steps to measure the airborne lead to determine whether employees wereoverexposed or not, and even after they were ill took no steps to monitor their exposure,see that they had information required as to hazards of overexposure to lead, the need formedical examinations, etc. Despite all this knowledge, the supervisors consistently madeno efforts to take the steps needed to protect the employees. Their conduct and inactionestablished a careless, deliberate disregard of the safety of Respondent’s employees whichwas willful in nature and is imputed to the Respondent.Furthermore, management was apprised that the work area posedlead contamination problems at various times and continued to pursue a policy of notproviding the medical surveillance, monitoring, medical removal. etc. all required.Specifically, in early 1983 employee Celmer was hospitalized for lead poisoning; employeeGoss similarly was stricken. The Respondent was informed of these happenings by either theemployee or his physician, yet made no effort to test and record the airborne lead levels,nor any other of the many requirements under the lead standard. Dr. McGraw of the ExideLaboratory discussed the significance of the blood lead levels obtained from the employeesand the need for Respondent to survey the lead operation with respect to the OSHA leadstandards. Respondent knew or with diligence should have known of the serious leadcontamination present and that the health and safety of its employees were being seriouslycompromised; their failure to act in a responsible manner demonstrated callous and plainindifference towards the health and safety of their employees. The circumstances hereinare more than sufficient to support a finding of willfulness.The Secretary proposed a penalty of $40,000 for the willfulviolations of various section of 29 C.F.R. ? 1910.1025. Under Section 17(J) of the Act,the Commission must give \”due consideration\” to various factors in determiningan appropriate penalty such as the gravity of the violation, size of the businessinvolved, good faith of the employer, and history of previous violations. The gravity ofthe violation was severe. At least four employees became ill due to airborne leadpoisoning. The Respondent never made any attempt to determine what, if any, was the levelof airborne lead present. They at no time, although knowledgeable of the standard and itsrequirements, called the attention of employees to the hazards of working with lead, andwhat if anything, they should be aware of. No attempt of any kind was made to makeemployees aware of the health hazard, nor to provide them with medical surveillance,medical assistance, certain monitoring, etc. The penalty of $40,000 is deemed appropriateunder all the existing facts and circumstances herein.Other Than Serious Citation Number 3 – item 1The Secretary alleges that the Respondent violated 29 C.F.R. ?1910.20(e)(3)(ii) [[21]] by failing to post a written access order and accompanying letterserved thereon for at least 15 working days. The evidence of record demonstrates that thecompliance officer served the access order and accompanying letter on the Respondent onMay 17, 1983, (Exh. C-10). Both on May 31 and June 1 the compliance officer looked for anddid not observe that the order and letter were posted as required; furthermore, an inquiryof employees indicated it had not been served (Tr. 810). The evidence fully demonstratesthat the Respondent failed to comply with the definite requirement that posting must becarried out for \”at least fifteen (15) working days.\” Accordingly, the citationfor violation of 29 C.F.R. ? 1910.20(e)(3)(ii) is affirmed.Other than serious citation number 3 – item 2The Secretary alleges the Respondent violated 29 C.F.R. ?1910.23(d)(1)(ii)[[22]] in that a flight of stairs at the annex platform containing 4risers, less than 44 inches wide with one side open, did not have a standard stairrailing. \”Riser\” is defined in 29 C.F.R. ? 1910.21(a)(7) as \”The uprightmember of a step situated at the back of a lower tread and near the leading edge of thenext higher tread.\” \”Tread\” is defined in 29 C.F.R. ? 1910.21(a)(9) as\”The horizontal member of a step.\” Reviewing the photograph in Exhibit C-1, p.10, demonstrates the presence of only three risers. It is to be noted the area between theground and the first step is not a riser by definition. There being only three risersherein it is apparent that Section 1910.23(d) does not apply. The citation for violationof 29 C.F.R. 1910.23(d)(1)(ii) is vacated.Other than serious citation number 2 – item 3The Secretary alleges a violation of 29 C.F.R. ?1910.37(f)(1)[[23]] because exits near bricker and strippers were blocked with paper andscrap metal. This section speaks to the general design, location and arrangement of exitsin a building, and not to impediments or obstructions man made. The Respondent was chargedwith violating the wrong section; the violation, if any, should have been that of 29C.F.R. ? 1910.37(k)(2). The section charged being improper, the citation for violation of29 C.F.R. ? 1910.37(f)(1) is vacated.Other than serious citation number 3 – item 4The Respondent was cited for failing to use safety cans totransfer flammable or combustible liquids (gasoline) in violation of 29 C.F.R. ?1910.106(e)(2)(iv)(d).[[24]] The evidence fully demonstrates that the Respondent was usinggasoline as a fuel to operate the saws cutting the lead cable; the gasoline was notdispensed from a safety can as required by the standard (\”safety can shall mean anapproved container, of not more than 5 gallon capacity, having a spring-closing lid andspout cover and so designed that it will safely relieve internal pressure when subjectedto fire exposure\” Section 1910.106(a)(29)) (Tr. 818-820). Respondent’s allegationthat Section 1910.106(d).Container and portable tank storage applies here and not thesection alleged is without merit. The violation alleged is not improper storage but thatsafety cans were not used to transfer the flammable liquid (gasoline), the storage merelybeing incidental to its improper use. Accordingly, the citation for violation of 29 C.F.R.? 1910.106(e)(2)(iv)(d) is affirmed.Other than serious citation number 3 – item 5The standard at issue 29 C.F.R. ? 1910.178(m)(4) prohibits\”arms or legs from being placed between the uprights of the mast or outside therunning lines of the truck.\” The compliance officer found a violation here when sheobserved an employee standing on a forklift forcing wire into an adjacent truck. Shestated the vehicle was running and he was in danger of being struck by the forks if\”something went wrong.\” The crux of the violation was (1) \”he was standingon this platform that wasn’t secure. . . \” and (2) \”he was very close to theraised forks\” which was not safe (Tr. 821-826; Exh. C-1, p. 11). The testimony andthe photographs admitted into evidence do not demonstrate a violation of the standard. Thestandard prohibits \”arms or legs from being placed between the uprights of the mastor outside the running lines of the truck.\” The evidence does not demonstrate thepresence of these conditions. Accordingly, the citation for violation of 29 C.F.R. ?1910.178(m)(4) is vacated.Other than serious citation number 3 – items 6a through6dThese items deal with alleged violations of 29 C.F.R. ?1910.157 [[25]] Portable fire extinguishers. Specifically a violation of Section1910.157(e)(2) [[26]] is alleged in that fire extinguishers were not visibly checked atleast monthly ; a violation of Section 1910.157(e)(3) [[27]] is alleged in that an annualmaintenance check was not made on the fire extinguishers; a violation of Section1910.157(g)(2) [[28]] is alleged in that no educational program was provided tofamiliarize employees with the general principles of fire extinguisher use and hazardsinvolved with improper fire fighting, and Section 1910.157(g)(4) [[29]] was allegedlyviolated in that training in the use of the equipment was not provided upon initialassignment and annually thereafter to the designated employees assigned to use same.The compliance officer examined a number of fire extinguishersand observed a number throughout the annex where the men were working at the bricker andstrippers, none of which showed monthly inspection notification as required. The tagsaffixed showed the last inspection recorded was in February 1981. Similarly, therequirement of an annual maintenance check was not carried out, the last being as reportedin February 1981. The testimony of the employees and the compliance officer fullyestablishes that there was no training or education done by management to familiarize themwith fire hazards and the safety procedures to be carried out in case of fire or otheremergencies (Tr. 98, 99, 324, 325, 373, 838-844).The Respondent contends that Section 1910.157 applies onlywhere fire extinguishers are \”provided for the use of employees.\” The employerherein supplied fire extinguishers and these here being in various parts of the annex. Itis reasonable to presume that they were therein placed for the use of the employees whileengaged in work activity for their protection in case of fire, and I so find. It isapparent the standard was promulgated to carry out the Congressional goal of protectingemployees from potential dangers in the workplace. Fire is a significant hazard. Otherthan providing the fire extinguishers he did nothing more – no monthly or annualmaintenance check, no training or education of his employees to prevent a disaster frompossible fire.\u00a0 Accordingly, it is concluded that the Respondent violated 29 C.F.R.?? 1910.157(e)(2), 1910.157(e)(3), 1910.157(g)(2), and 1910.157(g)(4) as alleged.Other than serious citation number 3 – item 7The Secretary alleges the Respondent violated 29 C.F.R. ?1910.303(f)[[30]] in that the disconnecting means for the electrical panel box in theannex building was not legibly marked to indicate its purpose, nor located and arranged sothe purpose was evident.The compliance officer observed an electrical panel box whichpowered the machines that had no \”markings or any information on it indicating itspurpose\” (Tr. 835). The employees operating the machines had access to thiselectrical panel box and were exposed to serious injury if the improper circuit wasinadvertently used.The Respondent argues the standard contains an alternativemethod of compliance in that the circuits, etc. must be marked \”unless located andarranged so that purpose is evident,\” and that the Secretary must prove the absenceof both to establish a violation. This argument is without merit. The standard dictates aviolation is present where the required parts are not marked to indicate their purpose,with the exception that this is not required if the parts are so arranged that theirpurpose is evident. The burden is on the Respondent to prove he meets the exception, ifthe Secretary as here proves the presence of the violation. Since the Respondent presentedno evidence whatsoever, he did not meet his burden.Moreover, the testimony of the compliance officer fully met theentire standard for she established that there were no markings or indication of thepurpose of the electrical parts. Accordingly, the citation for violation of 29 C.F.R. ?1910.303(f) is affirmed. I further conclude that under Section 17(J) of the Act, 29 U.S.C.? 661(i), a penalty of $100 is appropriate.FINDINGS OF FACTThe findings of fact contained in this opinion are incorporatedherein in accordance with Rule 52 of the Federal Rules of Civil Procedure. [[31]]CONCLUSIONS OF LAW1. Respondent at all times material to this proceeding wasengaged in a business within the meaning of Section 3(5) of the Act.2. Respondent at all times material to this proceeding wassubject to the requirements of the Act and the standards promulgated thereunder. TheCommission has jurisdiction of the parties and of the subject matter.3. Respondent committed serious violations as follows: CITATION No. 1THE EXHIBIT REFERRED TO ABOVE IS NOT AVAILABLE IN THISFORMAT.\u00a0 PLEASE TELEPHONE THE REVIEW COMMISSION PUBLIC INFORMATION OFFICE,202-606-5398, TO REQUEST A PAPER COPY; TTY: 202-606-5386; FAX: 202-606-5050; E-MAIL: [email protected]. Respondent committed willful violations as follows: CITATION No. 2THE EXHIBIT REFERRED TO ABOVE IS NOT AVAILABLE IN THIS FORMAT.\u00a0 PLEASE TELEPHONETHE REVIEW COMMISSION PUBLIC INFORMATION OFFICE, 202-606-5398, TO REQUEST A PAPER COPY;TTY: 202-606-5386; FAX: 202-606-5050; E-MAIL: [email protected]. Respondent committed other than serious violations as follows:CITATION NO. 3THE EXHIBIT REFERRED TO ABOVE IS NOT AVAILABLE IN THISFORMAT.\u00a0 PLEASE TELEPHONE THE REVIEW COMMISSION PUBLIC INFORMATION OFFICE,202-606-5398, TO REQUEST A PAPER COPY; TTY: 202-606-5386; FAX: 202-606-5050; E-MAIL: [email protected]. Respondent did not violate the following:CITATION NO. 1Item 1a, 1b, 2a, 2b, 2c, and 3CITATION NO. 3Item 2, 3, and 57. Consistent with Section 17(J) of the Act the following penalties are reasonableand appropriate: A. Serious Citation No. 1Item 4 – $150Item 5 -\u00a0 $200.B. Willful Citation No. 2Items 1a – ls – $9000Items 2a – 2e – $9000Items 3a – 3g – $9000Items 4a – 4c – $9000Items 5a – 5k – $4000.8. A reasonable and appropriate abatement date is 60 days after decision becomesfinal.ORDER1. The allegation of serious violation by this Respondent of thestandard set forth at 29 C.F.R. ?1910.212(a)(3)(iii) and 29 C.F.R. ?1910.303(g)(2)(i)are both FFIRMED and penalty\u00a0 of $40,000.00 is ASSESSED therefor:THE EXHIBIT REFERRED TO ABOVE IS NOT AVAILABLE IN THISFORMAT.\u00a0 PLEASE TELEPHONE THE REVIEW COMMISSION PUBLIC INFORMATION OFFICE,202-606-5398, TO REQUEST A PAPER COPY; TTY: 202-606-5386; FAX: 202-606-5050; E-MAIL: [email protected]. The allegation of than serious violations of the standards as set forth below isAFFIRMED and a penalty ofo zero dollars is ASSESSED therefor:THE EXHIBIT REFERRED TO ABOVE IS NOT AVAILABLE IN THISFORMAT.\u00a0 PLEASE TELEPHONE THE REVIEW COMMISSION PUBLIC INFORMATION OFFICE,202-606-5398, TO REQUEST A PAPER COPY; TTY: 202-606-5386; FAX: 202-606-5050; E-MAIL: [email protected]. A total aggregate penalty of $40,350.00 is ASSESSED herein. SO ORDEREDIRVING SOMMER Judge, OSHRCDated: April 14, 1986 Washington, D.C.\u00a0SECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0v.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0THERMAL REDUCTION CORPORATION,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.OSHRC Docket No. 83-1073ORDERIn the DECISION AN ORDER dated March 24, 1986 the finding thata penalty of $100.00 in appropriate for an other than serious violation of 29 C.F.R. ?1910.303(f) (Citation No. 3, item 7) was inadvertently omitted from the Conclusions of Lawand Order. Additionally, the section was erroneously cited as Section 1910.303(f)(3), andshould be Section 1910.303(f). Accordingly, under Rule 60 of the Federal Rules of CivilProcedure said DECISION AND ORDER is corrected as follows:1. Page 51, under paragraph 5 – Citation No. 3, item 7. shouldread: 29 C.F.R. ? 1910.303(f).2. Page 52 – Add paragraph 7C – Other than Serious Citation No.3 Item No. 7 – $100.00.3. Page 53 – Paragraph No. 3 should read as follows:The allegation of other than serious violations of the standards as set forth below isAFFIRMED and a penalty of $100.00 is ASSESSED therefor.Furthermore, Item 7 should read: 29 C.F.R. ? 1910.303(f).Paragraph 4 should read as follows:4. A total aggregate penalty of $40,450.00 is ASSESSED herein.So ORDERED.IRVING SOMMER Judge, OSHRCDated: APR 7 1986 Washington, D.C.FOOTNOTES: [[1]] The Respondent produced no evidence challenging the Secretary’s case as part of itsdefense.[[2]] 29 CFR ? 1910.1025(b) Definitions. \”Actionlevel\” means employee exposure, without regard to the use of respirators, to anairborne concentration of lead of 30 micrograms per cubic meter of air (30 ug\/m3)averaged over an 8-hour period.[[3]] 29 CFR 1910.23(d) Floor loading protection. (1) In everybuilding or other structure, or part thereof, used for mercantile, business, industrial orstorage purposes, the loads approved by the building official shall be marked on plates ofapproved design which shall be supplied and securely affixed by the owner of the building,or his duly authorized agent, in a conspicuous place in each space to which they relate.[[4]] Webster’s New Collegiate Dictionary, G. & C. MerriamCompany Publishers, 1979 edition, p. 873.[[5]] The text of the standard at 29 C.F.R. ? 1910.110(f)(2)provides: (f) Storage of containers awaiting use or resale-(1) Application. This paragraphshall apply to the storage of portable containers * * * filled or partially filled, * * *.(2) General. (i) Containers in storage shall be located so as to minimize exposure toexcessive temperature rise, physical damage, or tampering by unauthorized persons. (ii)Containers when stored inside shall not be located near exits, stairways, or in areasnormally used or intended for the safe exit of people.[[6]] 29 C.F.R. ? 1910.133 provides in pertinent part: ?1910.133 Eye and face protection. (a) General. (1) Protective eye and face equipment shallbe required where there is a reasonable probability of injury that can be prevented bysuch equipment. In such cases, employers shall make conveniently available a type ofprotector suitable for the work to be performed, and employees shall use such protectors.No unprotected person shall knowingly be subjected to a hazardous environmental condition.Suitable eye protectors shall be provided where machines or operations present the hazardof flying objects, glare, liquids, injurious radiation, or a combination of these hazards.[[7]] 29 C.F.R. ? 1910.1025 Lead * * * * (c) Permissibleexposure limit (PEL). (1) The employer shall assure that no employee is exposed to leadconcentrations greater than fifty micrograms per cubic meter of air (50 ug\/m3)averaged over an 8-hour period.[[8]] Citation was amended during hearing to include Section1910.1000(e)(1).[[9]] The cited standards provide:Item 1(c) 29 C.F.R. ? 1910.1025(f)(2)(i): ? 1910.1025 Lead.(f) Respiratory protection.(2) Respirator selection. (i) Where respirators are required under this section theemployer shall select the appropriate respirator or combination of respirators from tableII below.Item 1(d) 29 C.F.R. ? 1910.1025(f)(3)(ii): (3) Respirator usage.(ii) Employers shall perform either quantitative or qualitative face fit tests at the timeof initial fitting and at least every six months thereafter for each employee wearingnegative pressure respirators. The qualitative fit tests may be used only for testing thefit of half – mask respirators where they are permitted to be worn, and shall be conductedin accordance with Appendix D. The tests shall be used to select facepieces that providethe required protection as prescribed in table II.Item 1(e) 29 C.F.R. ? 1910.1025(f)(4)(i):(4) Respirator program. (i) The employer shall institute arespiratory protection program in accordance with 29 CFR 1910.134(b), (d), (e) and (f).Item 1(f) 29 C.F.R. ? 1910.134(b)(1): ? 1910.134 Respiratory protection.(b) Requirements for a minimal acceptable program, (1) Writtenstandard operating procedures governing the selection and use of respirators shall beestablished.Item 1(g) 29 C.F.R. ? 1910.134(b)(3):(3) The user shall be instructed and trained in the proper useof respirators and their limitations.Item 1(h) 29 C.F.R. ? 1910.134(b)(5):(5) Respirators shall be regularly cleaned and disinfected.Those used by more than one worker shall be thoroughly cleaned and disinfected after eachuse.Item 1(i) 29 C. F. R. ? 1910.134(b)(6):(6) Respirators shall be stored in a convenient, clean, andsanitary location.Item 1(j) 29 C. F. R. ? 1910.134(b)(7):(7) Respirators used routinely shall be inspected duringcleaning. Worn or deteriorated parts shall be replaced.Item 1(k) 29 C. F. R. ? 1910.134(e)(5)(i):(e) Use of respirators.(5) (i) Every respirator wearer shall receive fittinginstructions including demonstrations and practice in how the respirator should be worn,how to adjust it, and how to determine if it fits properly. Respirators shall not be wornwhen conditions prevent a good face seal. Such conditions may be a growth of beard,sideburns, a skull cap that projects under the facepiece, or temple pieces on glasses.Also, the absence of one or both dentures can seriously affect the fit of a facepiece. Theworker’s diligence in observing these factors shall be evaluated by periodic check. Toassure proper protection, the facepiece fit shall be checked by the wearer each time heputs on the respirator. This may be done by following the manufacturer’s facepiece fittinginstructions.[[10]] The American Heritage Dictionary, Houghton Mifflin Co.,1976 edition, p. 80.[[11]] The cited standards provide:The standard at 29 C.F.R. ? 1910.1025(g)(2)(1): Section 1025(g) Protective work clothingand equipment(2) Cleaning and replacement. (i) The employer shall providethe protective clothing required in paragraph (g)(1) of this section in a clean and drycondition at least weekly, and daily to employees whose exposure levels without regard toa respirator are over 200 mg\/m3 of lead as an 8-hour TWA.(ii) The employer shall provide for the cleaning, laundering,or disposal of protective clothing and equipment required by paragraph (g)(1) of thissection.* * * * *(iv) The employer shall assure that all protective clothing is removed at the completionof a work shift only in change roams provided for that purpose as prescribed in paragraph(i)(2) of this section.(v) The employer shall assure that contaminated protectiveclothing which is to be cleaned, laundered, or disposed of, is placed in a closedcontainer in the change-room which prevents dispersion of lead outside the container.* * * * * (vii) The employer shall assure that the containers of contaminated protective clothingand equipment required by paragraph (g)(2)(v) are labeled as follows:CAUTION: CLOTHING CONTAMINATED WITH LEAD. DO NOT REMOVE DUST BYBLOWING OR SHAKING. DISPOSE OF LEAD CONTAMINATED WASH WATER IN ACCORDANCE WITH APPLICABLELOCAL, STATE, OR FEDERAL REGULATIONS.[[12]] Webster’s New Collegiate Dictionary, G. & C. MerriamCompanyPublishers, 1979 edition, p. 68.[[13]] The standard provide:29 C.F.R. ? 1910.1025(5)(j) Medical surveillance – (1) General.(i) The employer shall institute a medical surveillance program for all employees who areor may be exposed above the action level for more than 30 days per year.* * * * (2) Biological monitoring – (i) Blood lead and ZPP level samplingand analysis. The employer shall make available biological monitoring in the form of bloodsampling and analysis for lead and zinc protoporphyrin levels to each employee coveredunder paragraph (j)(1)(i) of this section(ii) Follow-up blood sampling tests. Whenever the results of ablood lead level test indicate that an employee’s blood lead level exceeds the numericalcriterion for medical removal under paragraph (k)(1)(i), the employer shall provide asecond (follow- up) blood sampling test within two weeks after the employer receives theresults of the first blood sampling test.(iv) Employee notification. Within five working days after thereceipt of biological monitoring results, the employer shall notify in writing eachemployee whose blood lead level exceeds 40 mg\/100 g: (A) of that employee’s blood lead level and (B) that thestandard requires temporary medical removal with Medical Removal Protection benefits whenan employee’s blood lead level exceeds the numerical criterion for medical removal underparagraph (k)(1)(i) of this section.(3) Medical examinations and consultations – (i) Frequency. Theemployer shall make available medical examinations and consultations to each employeecovered under paragraph (j)(1)(i) of this section on the following schedule:(A) At least annually for each employee for whom a bloodsampling test conducted at any time during the preceding 12 months indicated a blood leadlevel at or above 40 mg\/100 g;(B) Prior to assignment for each employee being assigned forthe first time to an area in which airborne concentrations of lead are at or above theaction level;(C) As soon as possible, upon notification by employee eitherthat the employee has developed signs or symptoms commonly associated with leadintoxication, that the employee desires medical advice concerning the effects of currentor past exposure to lead on the employee’s ability to procreate a healthy child, or thatthe employee has demonstrated difficulty in breathing during a respirator fitting test * ** [[14]] The cited standards provide:29 C. F. R. ? 1910.1025(k)(1)(i)(C):(k) Medical Removal Protection – (1) Temporary medical removaland return of an employee – (i)Temporary removal due to elevated blood lead levels – * * *(C) Third year of the standard, and thereafter. Beginning with the third year followingthe effective date of the standard, the employer shall remove an employee from work havingan exposure to lead at or above the action level on each occasion that a periodic and afollow-up blood sampling test conducted pursuant to this section indicate that theemployee’s blood lead level is at or above 60 mg\/100 g of whole blood; and,29 C. F. R. ? 1910.1025(k)(2)(i): (k) Medical RemovalProtection(2) Medical removal protection benefits (i) Provision ofmedical removal-protection benefits. The employer shall provide to an employee up toeighteen (18) months of medical removal protection benefits on each occasion that anemployee is removed from exposure to lead or otherwise limited pursuant to this section.29 C. F. R. ? 1910.1025(k)(2)(iv): (k) Medical RemovalProtection(2) Medical removal protection benefits * * * (iv) Workers’ compensation claims. If a removed employee filesa claim for workers’ compensation payments for a lead-related disability, then theemployer shall continue to provide medical removal protection benefits pending dispositionof the claim. To the extent that an award is made to the employee for earnings lost duringthe period of removal, the employer’s medical removal protection obligation shall bereduced by such amount. The employer shall receive no credit for workers’ compensationpayments received by the employee for treatment related expenses.[[15]] Section 1910.1025(d) provides:(d) Exposure monitoring – (1) General. (i) For the purposes of paragraph (d), employeeexposure is that exposure which would occur if the employee were not using a respirator.* * * *(2) Initial determination. Each employer who has a workplace or work operation covered bythis standard shall determine if any employee may be exposed to lead at or above theaction level.[[16]] Section 1910.1025(e)(3)(i) provides:(3) Compliance program. (i) Each employer shall establish and implement a writtencompliance program to reduce exposures to or below the permissible exposure limit andinterim levels if applicable, solely by means of engineering and work practice controls inaccordance with the implementation schedule in paragraph (e)(1).[[17]] The standards provide as follows:29 C.F.R. ? 1910.1025(l)(1)(i) provides:(l) Employee information and training – (1) Training program.(i) Each employer who has a workplace in which there is a potential exposure to airbornelead at any level shall inform employees of the content of appendices A and B of thisregulation.29 C.F.R. ? 1910.1025(l)(1)(ii) provides:(ii) The employer shall institute a training program for andassure the participation of all employees who are subject to exposure to lead at or abovethe action level or for whom the possibility of skin or eye irritation exists.29 C.F.R. ? 1910.1025(l)(1)(iii) provides:(iii) The employer shall provide initial training by 180 daysfrom the effective date for those employees covered by paragraph (l)(1)(ii) on thestandard’s effective date and prior to the time of initial job assignment for thoseemployees subsequently covered by this paragraph.29 C.F.R. ? 1910.1025(l)(2)(i) provides:(2) Access to information and training materials. (i) Theemployer shall make readily available to all affected employees a copy of this standardand its appendices.[[18]] 29 C.F.R. ? 1910.1025(m)(2)(i) provides:(m) Signs – (1) General.(2) Signs. (i) The employer shall post the following warningsigns in each work area where the PEL is exceeded:[[19]] 29 C.F.R. ? 1910.1025(n)(2)(i) provides: (n) Record keeping(2) Medical surveillance. (i) The employer shall establish and maintain an accurate recordfor each employee subject to medical surveillance as required by paragraph (j) of thissection.[[21]] The standard at 29 C.F.R. ? 1910.20(e)(3)(ii) provides: (3) OSHA access.* * * *(ii) Whenever OSHA seeks access to personally identifiable employee medical information bypresenting to the employer a written access order pursuant to 29 CFR 1913.10(d), theemployer shall prominently post a copy of the written access order and its accompanyingcover letter for at least fifteen (15) working days.[[22]] The standard at 29 C.F.R. ? 1910.23(d)(1)(ii) states:(d) Stairway railings and guards.(1) Every flight of stairs having four or more risers shall be equipped with standardstair railings or standard handrails as specified* * * * * * * (ii) On stairways less than 44 inches wide having one side open, at least one stairrailing on open side.[[23]] The standard at 29 C.F.R. ? 1910.37 provides:(f) Access to exits. (1) Exits shall be so located and exit access shall be so arrangedthat exits are readily accessible at all times. Where exits are not immediately accessiblefrom an open floor area, safe and continuous passageways, aisles, or corridors leadingdirectly to every exit and so arranged as to provide convenient access for each occupantto at least two exits by separate ways of travel, except as a single exit or limited deadends are permitted by other provisions of this subpart, shall be maintained. [[24]] 29 C.F.R. ? 1910.106(e)(2)(iv)(d) states:1910.106 Flammable and combustible liquids.* * * * (e) Industrial plants* * * * (2) Incidental storage or use of flammable and combustible liquids * * * *(iv) Handling liquids at point of final use.* * * *(d) Flammable or combustible liquids shall be drawn from or transferred into vessels,containers, or portable tanks within a building only through a closed piping system, fromsafety cans, by means of a device drawing through the top, or from a container or portabletanks by gravity through an approved self-closing valve. Transferring by means of airpressure on the container or portable tanks shall be prohibited.[[25]] Section 1910.157 Portable fire extinguishers.(a) Scope and application. The requirements of this section apply to the placement, use,maintenance, and testing of portable fire extinguishers * * *. Where extinguishers areprovided but are not intended for employee use and the employer has an emergency actionplan and a fire prevention plan which meet the requirements of ? 1910.38, then only therequirements of paragraphs (e) and (f) of this section apply.[[26]] Section 1910.157(e) Inspection, maintenance and testing.(2) Portable extinguishers or hose used in lieu thereof under paragraph (d)(3) of thissection shall be visually inspected monthly.[[27]] Section 1910.157(e)(3) states:(3) The employer shall assure that portable fire extinguishers are subjected to an annualmaintenance check. * * * * [[28]] Section 1910.157(g) Training and education.(2) The employer shall provide the education required in paragraph (g)(10) of this sectionupon initial employment and at least annually thereafter.[[29]] Section 1910.157(g)(4) states:(4) The employer shall provide the training required in paragraph (g)(3) of this sectionupon initial assignment to the designated group of employees and at least annuallythereafter.[[30]] Section 1910.303(f) provides:(f) Identification of disconnecting means and circuits. Each disconnecting means requiredby this subpart for motors and appliances shall be legibly marked to indicate its purpose,unless located and arranged so the purpose is evident. Each service, feeder, and branchcircuit, at its disconnecting means or over-current device, shall be legibly marked toindicate its purpose, unless located and arranged so the purpose is evident. Thesemarkings shall be of sufficient durability to withstand the environment involved.[[31]] Rule 52. Findings by the Court(a) Effect. In all actions tried upon the facts without a jury * * *, the court shall findthe facts specially and state separately its conclusions of law thereon, * * *. If anopinion or memorandum of decision is filed, it will be sufficient if the findings of factand conclusions of law appear thereon. (Emphasis supplied.)”