Bay State Refining Company

Read the official release (oshrc.gov)

Plain-English summary

Bay State manufactured brass and bronze ingots from scrap metal at its Chicopee, Massachusetts foundry. OSHA found employees overexposed to copper dust and lead and cited deficiencies in engineering controls, respirator selection and fit testing, contaminated-clothing practices, medical surveillance, training, hygiene, noise conservation, and exposure records. The Commission held that workplace observations, expert testimony, and the lead standard's rulemaking history established that the measured lead was metallic or inorganic lead covered by the standard. Bay State offered no evidence that another form of lead made OSHA's exposure measurements unreliable. The Commission declined to reconsider the judge's willful finding for the company's failure to require showers after lead-exposed shifts because Bay State did not brief the willfulness issue on review. It affirmed the judge's decision, including $3,500 for the serious citation items and $16,000 for two willful lead items, for total penalties of $19,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1000(a)(2); 29 C.F.R. § 1910.1000(e); 29 C.F.R. § 1910.1025(c)(1); 29 C.F.R. § 1910.1025(d)(8)(i); 29 C.F.R. § 1910.1025(d)(8)(ii); 29 C.F.R. § 1910.1025(e)(1); 29 C.F.R. § 1910.1025(f)(2)(i); 29 C.F.R. § 1910.1025(f)(3)(ii); 29 C.F.R. § 1910.1025(f)(4)(i); 29 C.F.R. § 1910.134(b); 29 C.F.R. § 1910.134(d); 29 C.F.R. § 1910.134(e); 29 C.F.R. § 1910.134(f); 29 C.F.R. § 1910.1025(g)(2)(viii); 29 C.F.R. § 1910.1025(i)(3)(i); 29 C.F.R. § 1910.1025(j)(3)(i)(A); 29 C.F.R. § 1910.95(c)(1); 29 C.F.R. § 1910.1025(g)(2)(vii); 29 C.F.R. § 1910.1025(i)(4)(iv); 29 C.F.R. § 1910.1025(j)(3)(iv)(A)(1-6); 29 C.F.R. § 1910.1025(l)(1)(iv); 29 C.F.R. § 1910.1025(n)(1)(ii); 29 C.F.R. § 1910.1025(n)(2)(ii).
• Outcome: Judge's decision affirmed, including serious and willful lead and copper violations with total penalties of $19,500.
• Key point: Once OSHA showed covered lead was present in the work area, the employer needed evidence, not speculation, to show that another form of lead made the exposure results unreliable.

Full text (OSHRC public release)

Docket No. 88-1731

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

BAY STATE REFINING COMPANY. INC.,

Respondent.

Docket No. 88-1731

DECISION

BEFORE: FOULKE, Chairman. WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

This case arose out of an inspection of a brass and bronze
ingot manufacturing facility operated by Respondent, Bay State Refining Company ("Bay
State"), in Chicopee, Massachusetts. The Secretary, through the Occupational Safety
and Health Administration ("OSHA"), cited Bay State for alleged violations of 29
C.F.R. �� 1910.1000, 1910.1025, and 1910.95, standards dealing with exposure of
employees to copper dust, exposure of employees to lead, and protection of employees from
excessive noise levels. Administrative Law Judge Paul A. Tenney affirmed all of the
citation items before him.

The Commission requested the parties to submit briefs in two
issues. The first issue is whether the Secretary established Bay State's employees were
exposed to lead within the meaning of 29 C.F.R. � 1919, which defines "lead"
means metallic lead, all inorganic lead compounds, and organic lead soaps. Excluded from
this definition are all other organic lead compounds. Second, we requested briefs on
whether definition are all other organic lead compounds. Second, we requested briefs on
whether the judge erred in concluding, that Bay State's violation of 29 C.F.R. �
1025(i)(3)(i), which requires the employer to "assure that employees who work in
areas where their airborne exposure to lead is above the [permissible exposure limit] . .
. shower at the end of the work shift," was willful in nature. For the reasons that
follow we conclude that Bay State's employees were shown to be exposed to metallic lead or
inorganic lead compounds. We decline to reach the second issue on which briefs were
requested on the ground that Bay State has exhibited no interest in review on the question
of the characterization of the violation of 29 C.F.R. � 1025 (i)(3)(l) [[1]]

FACTS

Bay State's employees process nonferrous, i.e.,
non-iron-bearing, scrap metal. The scrap is first sorted and then compressed into blocks,
an operation known as "briquetting." The blocks are then put into a furnace
where they are melted and the resultant material is poured into ingot molds. The ingots,
that come out of these molds are sold to Bay State's customers, principally nonferrous
foundries. Edward Powers, Bay State's Plant Manager, described Bay State's business as
that of a brass and bronze ingot manufacturer.

Compliance officer WilIiam Hargraves conducted an inspection.
Hargraves is it senior industrial hygienist for OSHA, who has a masters degree in public
and environmental health and also has prior experience working with the lead standard as a
hygienist in private industry before joining OSHA. He has conducted twenty-five to thirty
inspections involving exposure to metal particulates. Victor O'Brien, Assistant Plant
Superintendent for Bay State, informed Hargraves that one of Bay State's usual products.
Product 125, contained 6 to 8 percent lead. At the time of the inspection, Product 125 was
being produced two to three times a week. Hargraves took air samples of a number of Bay
State's employees during the time that Product 125 was being produced. The OSHA laboratory
analyzed these samples for thirteen different metals including lead. The test results
showed that Bay State's employees were exposed to lead in concentrations well above the
permissible exposure limit ("PEL") of 50�g/m 3 specified in 29 C.F.R.
� 1910.1025(c).

Hargraves testified that organic lead essentially consists of
molecules containing lead combined with carbon and hydrogen. Inorganic lead is comprised
of the element lead or oxide compounds of lead without any carbonaceous material. Organic
lead has less "general" lead content than inorganic lead. Although the OSHA
laboratory analyses. admitted into evidence, state that the samples were analyzed for
"lead: inorganic fumes and dust," Ray Abel, the chemist in the OSHA laboratory
who supervised the analysis of the samples, testified that the test results did not
indicate what percent of each sample was organic and what percent was inorganic. When
asked what conclusions could be drawn from the sampling results. Abel was equivocal:

Q. Now. can you tell from the figures that were generated, the
figures that were reported, that you've analyzed. how much metallic lead was in any of the
samples?

A. Yes. sir.

Q. How much?

A. In the one we just talked about. 44331, it was 0.0971 milligrams per cubic meter.

Q. Now. can you tell us in that sample how much of that lead was lead soap?

A. It's all elemental yes.

Q. Can you tell how much was organic as compared to how much was inorganic?

A. No, sir.

Q. Can you tell how much was metallic as compared to how much was nonmetallic?

A. Yes.

Q. How much?

A. Well, all the metallic was listed.

Melvin Cassady, the director of OSHA's Health Response Team,
which assists employers in assessing and implementing engineering controls for air
contaminants, conducted a discovery inspection of Bay State's facility to determine the
feasibility of engineering controls. During this inspection, Cassady observed Bay State's
employees processing scrap objects such as automobile radiators, wiring, fittings, and
plumbing. Hargraves further testified that he determined that the airborne lead he sampled
at Bay State's plant was inorganic by observing the material being processed. He noted,
"[i]t was not a soap or a material that indicated anything but inorganic lead."

DISCUSSION AND ANALYSIS

A. Nature of the Lead in Bay State's
Workplace

The judge noted that Cassady had mentioned the several sources
of scrap used by Bay State (radiators, wiring, fittings, and plumbing) and that Hargraves
had testified that this type of material would contain inorganic lead. Based on Hargraves'
testimony, the judge found that "[t]here was lead in the air, and the lead was
inorganic. It was metallic; it was not a soap or other organic material." The judge
did not mention Abel's testimony. Bay State contends, in essence, that the judge's
decision is contrary to the evidence because the judge disregarded Abel's testimony. We
disagree.

Chemist Abel's testimony is at best equivocal and clearly does
not establish that the lead detected in the samples was inorganic or metallic lead.
Conversely, however, Abel's testimony fails to show that the lead was not of the type that
would come within the standard. The most that can be deduced from his testimony is that
the sampling results were not conclusive on the question of what type of lead was
detected. However, hygienist Hargraves gave his opinion that the type of objects being
processed were consistent with inorganic lead. Hargraves' qualifications show that he has
some expertise in dealing with industrial lead exposure. Generally speaking, the opinion
testimony of a qualified non-expert witness is entitled to weight if not rebutted. See
StanBest, Inc., 11 BNA OSHC 1222, 1227, 1983-84 CCH OSHD � 26,455, p. 33,620 (No.
76-4355, 1983). Bay State presented no evidence of its own to rebut Hargraves testimony.
As the Commission held in Anaconda Aluminum Co., 9 BNA OSHC 1460, 1981 CCH OSHD 25,300
(No. 13102, 1981), an employer who contends that the Secretary's air samples contain
substances in addition to the particular air contaminant in question must do more than
merely raise the suggestion that the laboratory results may not properly reflect the
employees exposure to the regulated substance. [[2]] Rather, once the Secretary, as in
this case, has introduced evidence that the contaminant in question was present in the
work area, the burden shifts to the employer to present evidence of its own showing that
some other substance is present in sufficient quantity to render the Secretary's
measurements unreliable Id. at 1465, 1981 CCH OSHD at p. 31,338. In the absence of any
such evidence from Bay State, the record clearly supports Judge Tenney's finding that Bay
State's employees were exposed to metallic or inorganic lead within the definition at �
1910.1025(b). [[3]]

Furthermore, when OSHA promulgated the lead standard, it
determined, after extensive fact finding, that operations of the type conducted by Bay
State expose employees to metallic or inorganic lead. Originally, OSHA regarded the brass
and bronze ingot industry as part of the nonferrous foundry industry. In the preamble to
the lead standard, OSHA stated that brass and bronze , (i.e. nonferrous) foundries exposed
employees to inorganic or metallic lead:

The lead content of copper-based alloys, i.e. brass and bronze,
may amount to as much as 20 percent by weight of the metal core. The lead content of
copper based ingots averages 5 percent.

....

Exposure to airborne lead results from insufficient control of fumes from the melting and
pouring of alloys. In copper-base alloy foundries, approximately 15 percent of the
particulate matter ... from the melting of red and yellow brass is lead oxide...

43 Fed. Reg. 52,980 (1979) (Citations omitted). [[4]]

In accordance with a remand order of the Court of Appeals for
the District of Columbia in United Steelworkers v. Marshall, 647 F.2d 1189 (D.C. Cir.
1980), cert. denied, 453 U.S. 913 (1981), OSHA conducted additional rulemaking proceedings
to determine whether the requirement of � 1910.1025(e)(l) that employers implement
engineering or work practice controls to meet the PEL of 50�g/m 3 , [[4]] was
feasible for certain industries, including nonferrous foundries. OSHA subsequently
reaffirmed its original findings that compliance with this exposure level was feasible and
issued a supplemental statement of reasons in support of that conclusion. 54 Fed. Reg.
29,142 (1989). In this supplementary statement OSHA identified "brass and bronze
ingot production" as a separate industry. OSHA described the relationship between
smelting, brass and bronze ingot manufacture, and nonferrous foundry work as follows:

The similarities between brass and bronze ingot production,
secondary copper smelting and non-ferrous foundries are substantial. Ingot production is
like secondary copper production in its scrap preparation and like non-ferrous foundries
in its furnace and pouring operations. In addition, as discussed below, facilities in each
of these pyro-metallurgical sectors have many operations and procedures in common.

Like copper smelting, ingot production involves copper-based
scrap, typically containing a substantial amount of lead, as the raw material, and depends
upon refining to produce the finished product. Unlike copper smelting, ingot production
does not involve smelting and therefore does not entail the high exposure levels
associated with blast furnaces. In addition, unlike copper smelting the refining process
in Ingot production is not aimed at removing all metals, like lead, to produce
increasingly pure copper. Rather, the purpose in ingot production is to remove only those
contaminants that do not meet particular alloy specifications. In these aspects, ingot
production, as industry concedes...is similar to the process used by non-ferrous foundries
that produce lead-containing alloy castings. Indeed, allow ingots are the primary raw
material for the non-ferrous foundry industry. In both industries lead is present
throughout the production of leaded alloys, and therefore the potential for lead exposure
exists in nearly every operation, and is especially great in hot operations.

Id . at 29,154 (citation omitted). Specifically with
response to brass and bronze ingot manufacturers, OSHA stated:

Raw materials used by brass and bronze ingot producers include
a wide variety of copper-bearing scrap, such as faucets, automotive radiators, electrical
cable and machinings. Typically, the lead content of the scrap varies. The lead content of
the most common types of ingots produced is 5-7% (e.g., leaded red brass and semi-red
brass). In some brass and bronze ingot producing facilities, no more than 20% of total
tonnage is in high lead alloys (25% lead), which means that 80% of their tonnage is
comprised of low-lead or unleaded alloys.

Id . at 29,150.

These findings clearly and unmistakably constitute a
determination by the Secretary that the industries addressed in the rulemaking record,
including the brass and bronze ingot manufacturing industry use lead in a
metallic or inorganic form. [[5]] See Advance Bronze, Inc. v. Dole, 917 F.2d 944,951 (6th
Cir. 1990) (citing the supplementary statement as authority for its conclusion that the
lead standard applies to the nonferrous foundry industry). We recognize, as did OSHA in
its rulemaking determinations, that the actual lead content of the material being
processed by brass and bronze ingot manufacturers constantly varies and that some material
may have no lead content whatever. However, Hargraves testified that he was informed that
there was lead in the product Bay State was manufacturing at the time of the inspection,
and Bay State presented no contrary evidence. We interpret OSHA's statements quoted above
as establishing that ingot producers process scrap metal or metallic alloys; thus, while
the materials may not always be lead-bearing, when lead is present, it will likely be
metallic or inorganic in nature.

Considering the evidentiary record in this case together with
the rulemaking history of the lead standard, we find no basis on which to disturb the
judge's conclusion that Bay State's employees were exposed to metallic or inorganic lead
within the definition at � 1910.1025(b).

B. Willfulness Issue

Judge Tenney found that Bay State did not require the employees
exposed to lead in excess of the PEL to take showers at the end of their work shift and
that its reason for failing to impose such a requirement was its view that showering was a
matter of an individual employee's personal choice. The judge concluded that by
substituting its own policy of employee preference for the mandatory requirement of 29
C.F.R. � 1910.1025(i)(3)(i). Bay State intentionally disregarded the provisions of the
standard and therefore had committed a willful violation.

It is well-settled that a willful violation is one committed
voluntarily with either an intentional disregard of the requirements of the Act or a plain
indifference to employee safety. E.L. Jones & Son, 14 BNA OSHC 2129, 2113, 1991 CCH
OSHD � 29,264. p. 39,232 (No 87-8 1991). The issue of willfulness focuses on the
employer's state of mind and requires proof of a greater degree of culpability on the part
of the employer than simple knowledge or awareness of hazardous conditions that is a
prerequisite for any violation. Carabetta Enterp.. No. 89-2007, slip op. at 7 (Dec. 18,
1991): Williams Enterp., 13 BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD � 27,893, p. 36,589
(No. 85-355, 1987). In its trial brief before the judge. Bay State argued both that it had
not violated 29 C.F.R. � 1910.1025(i)(3)(i) in the first instance and also that if a
violation had occurred, the heightened degree of culpability necessary for willfulness to
be established did not exist. In our briefing notice, we requested the parties to brief
the issue of whether the judge erred in finding the violation to be willful. In response,
Bay State disputed the merits of the violation itself, arguing that for a number of
reasons the judge erred in finding that it had failed to comply with the cited standard.
Bay State did not present any argument regarding the characterization of the violation;
that is, Bay State failed to address the critical element of its state of mind or attitude
toward employee safety. We interpret Bay State's silence on this point in its review brief
after having previously argued willfulness to the judge as an indication that it has
abandoned the issue of whether the violation was willful in nature. StanBest, 11 BNA OSHC
at 1224-25 n.4. 1983-84 CCH OSHD at p. 33,618. Accordingly, we will not address the
question of whether the judge erred in finding the violation of 29 C.F.R. �
1910.1025(i)(3)(i) to be willful In nature. See Georgia-Pacific Corp., 15 BNA OSHC 1127,
1130, 1991 CCH OSHD � 29,397. p. 39,576 (No. 89-2713, 1991) (Commission declines to
address issues on which the aggrieved party indicates no interest).

C. Other Issues

We also decline to address Bay State's contentions regarding
the merits of the violation of 29 C.F.R. � 1025(i)(3)(i). While the Commission has
authority to consider any issues raised in a case directed for review. Hamilton Die Cast,
Inc., 12 BNA OSHC 1797, 1986-87 CCH OSHD � 27,576 No. 83-308, 1986), the Commission at
the same time has discretion to limit the scope of its review. Pennsylvania Steel Foundry
& Machine Co. 12 BNA OSHC 2017, 2019 n.3, 1986-87 CCH OSHD � 27,671, p.36,063 n.3
(No. 78-638, 1986), aff'd, 831 F.2d 1211 (3d Cir. 1987). Bay State's arguments that the
judge erred in affirming the violation of 29 C.F.R. � 1910.1025(i)(3)(i) raise factual
matters that the judge addressed in his decision. We conclude that they do not warrant
review. See Dover Elevator Co., 15 BNA OSHC 1378, 1378 n.2 1991 CCH OSHD � 29,524, p.
39,846 n.2 (No. 98-2642, 1991). [[6]]

For the reasons stated above the judge's decision is affirmed.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: January 17, 1992

IN THE MATTER OF:

ELIZABETH DOLE, SECRETARY OF LABOR,

Complainant.

v.

BAY STATE REFINING CO., INC.,

Respondent.

Docket No. 88-1731

APPEARANCES:

JOHN S. CASLER, ESQUIRE

U.S. Department of Labor

For the Complainant,

ROBERT D. MORAN, ESQUIRE

Cooter and Gel

For the Respondent,

DECISION AND ORDER

JUDGE TENNEY

PROCEDURAL BACKGROUND

This proceeding arises under the Occupational
Safety and Health Act of 1970 (29 U.S.C. Section 651 et seq.; hereinafter referred to as
the "Act"). Pursuant to a search warrant, Mr. Hargraves, an Occupational Safety
and Health Administration (hereinafter OSHA) Compliance Officer, inspected the
Respondent's foundry in Chicopee, Massachusetts. Mr. Hargraves returned to the worksite
several times in conducting the investigation and testing for exposure to lead. As a
result of the investigation, the Respondent was issued with three citations, each
containing multiple items. Citation No. 1 was classified as "Serious", and
contained six items; a total proposed penalty of $3,740 was assessed. [[1]] Citation No. 2
was classified as "Willful", and contained two items; a total proposed penalty
of $16,000 was assessed. Citation No. 3 was classified as "Other than Serious",
and contained eight items with no penalty assessments. [[2]]

Bay State filed a timely notice of contest. After
the filing of pleadings and the conduct of some discovery, a hearing was held on October
23 through 25, 1989, in Springfield, Massachusetts. Initial post-hearing briefs were filed
and considered. In response to an invitation, the Secretary filed a reply brief which was
considered; the Respondent declined to file a reply brief.

A. Reasonable Promptness

The Respondent contends that the citations were
not issued in accordance with the Act or the applicable rules adopted thereunder.
Respondent argues that the term "reasonable promptness" at 29 U.S.C. � 658(a)
means 72 hours from the time the violation is detected by the inspector. [[3]] Respondent
asserts that the latest date of. alleged noncompliance was April 21, 1988, but the
citation was issued on June 29, 1988. Thus, since the citations were issued beyond the
72-hour-time period, then the citations must be vacated. The argument must fail for the
following reasons.

Regardless of delay in issuance, up to the
six-month statute of limitations in � 9(c) of the Act, a citation will not be vacated
unless the employer was prejudiced to the delay. [[4]] See Chicago Bridge & Iron
Co. v. OSHRC , 535 F.2d 371, 4 BNA OSHC 1181 (7th Cir. 1976), Coughlan Construction
Company. Inc., 3 BNA OSHC 1636 (Nos. 5303 and 5304, 1975). The Respondent does not allege
prejudice as a result of the citations being issued in June. Unless the delay impaired an
employer's ability to prepare and present a defense, the citation was deemed to have been
issued in accordance with � 9(a) of the Act. Stripe-A-Zone, Inc., 10 BNA OSHC 1694, No.
79-2380, 1982).

B. Requests for Admissions

The Respondent filed a number of requests for
admissions to the Secretary. It relies heavily on its requests for admissions to support
its case. First, it argues that the requests for admissions were timely since they are not
a discovery device and therefore not bound by the established prehearing discovery
schedule. Second, it argues because the Secretary did not respond adequately, the
requested responses must be considered admitted. The arguments are unpersuasive.

Wright and Miller notes that requests for
admissions are "strictly speaking" not a discovery procedure. [[5]] The
Respondent takes that statement one step further and contends that the requests for
admissions are not a discovery device within the scope of my January 18, 1989, order which
closed discovery. I disagree. The Commission's rules control. The Commission rules
specifically refer to requests for admissions as a discovery device at Rule 52(a)(l)(ii).
[[6]]

Respondent's requests for admissions were served
on May 12, 1989. Under my order of January 18, 1989, the time for discovery had been
closed on April 15, 1989. I reiterated the date discovery was closed in my April 26, 1989,
order. [[7]] Thus, the requests for admissions were untimely as the period of discovery
had been closed. Moreover, the Complainant served denials to the requests under Commission
Rule 54(b)(2). The denials are in any event sufficient.

Also, Respondent never applied for relief to
determine the sufficiency of the responses. Further, if the Respondent had timely objected
to their sufficiency, there has been no burden sustained in justification of the
objection. [[8]]

C. Whether the Lead Standard Applies to
Bay State Foundry

The Respondent argues that the entire lead
standard is inapplicable. The respondent is mistaken.

On November 14, 1978, OSHA published the lead
standard that is published at 29 C.F.R. section 1910.1025 which limited occupational
exposure to airborne concentrations of lead to 50 �g/m 3 (micrograms of lead
per cubic meter of air). 43 Fed. Reg. 53,007 (1978); United Steelworkers of America.
AFL-CIO-CLC v. Marshall , 647 F.2d 1189, 1202 (1980). Employers were required to
achieve the "permissible exposure level" (hereinafter PEL) of 50�g/m 3
by means of engineering and work practice controls. However, in the Steelworkers
decision there was a stay placed on � 1910.1025(e)(1) in the nonferrous foundries.

The Respondent argues that there is nothing in the
Steel-workers decision holding that any of the lead standard in issue are
enforceable for the nonferrous foundry industry, of which the Respondent is a member.
(Respondent's Brief, p. 15). The lead standard in issue was published at 29 C.F.R.
1910.1025 limiting occupational exposure to airborne concentrations of lead to 50 �g/m 3
(micrograms of lead per cubic meter of air).

43 Fed. Reg. 53,007.

At the time of the Steelworkers opinion the
parties were operating under a partial stay issued on March 1, 1979. See 647 F.2d at 1311.
In that Order the Court stated:

On consideration of the papers filed by the
parties, and the discussions at conference, a partial stay of the standard will be
ordered. The objective of the stay is to defer the requirements that employers undertake
the expense of engineering controls, revision of work practices, and construction of
facilities pending determination of their challenge to the standard. At the same time, the
Court has concluded that portions of the standard which will provide protection to
employees during the pendency of judicial review should go into effect, as set forth in
the order.

The March 1 Order, as subsequently amended at 647
F.2d at 1311, is the only "stay" applicable to the lead standard. That stay was
sharply modified in Steelworkers :

We remand the record to the Secretary of Labor for
reconsideration, in the light of this opinion, of the feasibility of the standard for the
industries listed in the previous paragraph. The Secretary shall return the record on the
feasibility of the standard for these industries, with sufficient evidence and fuller
explanation, within six months of the issuance of this opinion. In the interim one portion
of our March 1, 1979 partial stay of the lead standard shall remain in effect: For those
industries listed in the previous paragraph the stay of Section 1910.1025(e)(l) of the
standard, which requires compliance with the PEL by engineering and work practice
controls, shall remain in effect. These industries, however, shall be immediately
required to meet the PEL of 50 �g/m 3 by some combination of engineering, work
practice, and respirator controls.

All other provisions of the March 1, 1979
partial stay are hereby lifted ... (Underscoring added). 647 F.2d at 1311.

As to the issue of engineering controls, which is
the subject of section 1910.1025(e)(l), the original stay stated that:

(3) The motion to stay the application of 29
C.F.R. 1910.1025(e)(l), which provides for compliance by engineering and work practice
controls, is granted. During the period of this stay respondent's present lead exposure
standard, 29 C.F.R. section 1910.1000, Table Z-2, shall remain in effect. The motion to
stay the application of 29 1910.1025(e)(2), which provides for respiratory protection, is
denied except that the reference to paragraph (f) shall incorporate only those portions of
that paragraph not stayed by this order. The provisions of 29 C.F.R. 1910.1025(e)(3),
governing written compliance programs, are stayed except for paragraph (f). The remaining
portions of 29 C.F.R. 1910.1025(e) are stayed.

This aspect of the stay as to engineering controls
was continued in Steelworkers .

For those industries listed in the previous
paragraph the stay of Section 1910.1025(e)(l) of the standard, which requires compliance
with the PEL by engineering and work practice controls, shall remain in effect. These
industries, however, shall be immediately required to meet the PEL of 50 �g/m 3
by some combination of engineering, work practice, and respirator controls.

All other provisions of the March 1, 1979
partial stay are hereby lifted ... (Underscoring added). 647 F.2d at 1311.

Further, read together, the March 1, 1979, Order
and the Steelworkers decision establish that (l) all parts of section 1910-1025,
except paragraph (e), are in full force and effect, and (2) as to engineering controls,
the level of 200 �g/m 3 , taken from 29 C.F.R. 1910-1000, Table Z-2, judicially
mandated to remain in effect.

Also, the Secretary's position regarding
engineering controls is not solely a litigation position taken in this case. The same
interpretation formed the subject of contemporaneous rulemaking. See the interpretation
published at 46 Fed. Reg. 60,758 (Dec. 11, 1981). Moreover, to construe the standard
differently would have afforded less protection with respect to engineering controls than
existed before the adoption of the revised lead standard in 1978. There is no indication
that such a result was intended by the Secretary in his rulemaking or the D.C. Circuit in Steelworkers .

In short, Secretary's interpretation is entitled to deference. The lead standard at 29
C.F.R. � 1910.1025, except paragraph (e)(1), was in full force and effect. Also, as to
engineering controls, the level of 200 �g/m 3 , taken from 29 C.F.R. 1910.1000,
Table Z-2 is considered to be judicially and administratively mandated to remain in
effect. Finally, under Steelworkers the Respondent is plainly required to meet a
PEL of 50 �g/m 3 by some combination of engineering, work practice, and
respirator controls.

The Respondent also argues that the lead standard
does not apply because the Secretary did not establish the presence of airborne lead in
Respondents workplace. (Respondent's Brief, p. 17). Mr. Melvin E. Cassady, a Senior
Industrial Hygienist with OSHA, testified that he had experience with "lead
scrap", and that although he could not identify the type of scrap which was used at
Bay State, it probably came from a variety of sources, such as radiators, wiring,
fittings, and plumbing. There was lead in the air, and the lead was inorganic. It was
metallic; it was not a soap or other organic material. Testimony of Mr. Hargraves (Tr.
146).

D. The Validity of 29 C.F.R. �
1910.1000

The Respondent argues the standard at 29 C.F.R.
section 1910.1000 is invalid as to copper. The Respondent presents four arguments. First,
there was no copper standard in effect at the time of the section 6(a) promulgation.
Second, the Walsh-Healey source standard did not set a TWA (Time Weighted Average) for
copper exposure. Third, OSHA made a substantive change in its May 1971 publication
pursuant to section 6(a), when it first published 1910.93 with a reference to the 1970
ACGIH TLV's. Fourth, the source standard had undergone numerous changes in the absence of
required notice and public procedure in rulemaking.

The arguments lack persuasion. In analyzing the
standard the focus is on whether there are significant differences in language between the
source standard and the OSHA standard. Deering Milliken, Inc., Unity Plant v. OSHRC ,
630 F.2d 1094, 9 BNA OSHC 1001 (5th Cir. 1980) (validity of 1910.1000). OSHA is not
required to promulgate verbatim the source standards. Rather, the proper inquiry is
whether the Secretary made substantial modifications in the source standard.

The Secretary had under the Walsh-Healey Public
Contracts Act effectively incorporated by reference the 1968 American Conference of
Government Industrial Hygienists (ACGIH) document which established threshold limit values
(TLV's) for numerous airborne contaminants including copper dust. 40 C.F.R. 50-204.50. The
Walsh-Healey incorporation fully complied with the Federal Register rules for
incorporation by reference published at that time at 1 C.F.R. 20.10 - .12. After an
initial mistaken publication of a reference to 1970 ACGIH values, a correction was made to
show the 1968 values. 36 Fed. Reg. 15,101 (Aug. 13, 1971).

Thus, the 1968 ACGIH values were successfully
incorporated into the standard. The ACGIH document specifically stated that all of the
levels contained therein, unless notated with a "C", are TWA's or time-weighted
average threshold limit values. The level for copper dust is a TWA.

But Respondent argues that OSHA made a substantive
change when in May 1971 pursuant to section 6(a) of the Act it initially published a
reference to the 1970 ACGIH TLV's. As noted above, the reference was corrected in August
1971 when section 2920.93 was "revised in its entirety in the interest of greater
intelligibility and accuracy." 39 Fed. Reg. 25,101 (Aug. 13, 1971). At that time,
OSHA republished the 1968 ACGIH values, and corrected its mistaken reference to the 1970
ACGIH document. The Secretary is not foreclosed from correcting inadvertent administrative
errors without including advance notice and public procedure in his rulemaking.
American Trucking Associations, Inc. v. Frisco Transportation Co. , 358 U.S. 133, 145
(1958).

Another series of Respondent's arguments is based
on the fact that the text of section 1910.1000 is different from that contained in 41
C.F.R. 50 - 204.50(a). Respondent specifically points to three changes which it believed
are significant: (a) in lieu thereto states "shall not be exceeded," thereby
changing a TLV into a time-limited PEL; (b) section 1910.1000 omits the protective
equipment "option" provided in 41 C.F.R. 50-204 by dropping an "or"
and (c) section 1910.1000 compounds the protective equipment omission only dropping the
"by inhalation, in question etc." text.

None of these changes are substantive
modifications. Deering Milliken 9 DNA OSHC at 1008. See also Bunge Corporation ,
1986 CCH OSHD Par. 27,565 (Rev. Com. 1986) at 35,804; Smith Steel Casting Co. , 1988
CCH OSHD Par, 28,110 (ALJ).

E. Hearsay

The Respondent argues error in the admission and
reliance upon the out-of-court statements made by its former Assistant Plant
Superintendent, Mr. Victor O'Brien and its Plant Manager, Mr. Ed Powers to the Compliance
officer as inadmissible hearsay. See Respondent's Brief pages 98, 99, 136.

The statements by both Mr. O'Brien and Mr. Powers
were admissions and therefore not hearsay. [[9]] Both Mr. O'Brien and Mr. Powers held
supervisory positions within Bay State and were responsible for the production operations
which are the subject of the violations cited herein. Mr. O'Brien's position of
responsibility is particularly evidenced by his participation in the opening and closing
conferences, and the walkaround inspection as an authorized representative of Bay State.

F. Specific Findings of Fact and
Conclusions of Law

1. Respondent, Bay State Refining Co., Inc.,
   (hereinafter Bay State) is a corporation with a principal place of business at 8
   Montgomery Street, Chicopee, Massachusetts.

2. Bay State is within a nonferrous industry
   engaged in the operation of secondary smelting and the manufacture of brass and bronze
   ingots. The Commission has jurisdiction because Bay State utilizes tools, equipment,
   machinery, materials, goods and supplies which have originated in whole or in part from
   locations outside the state of Massachusetts. (Pleadings). Thus, Bay State is an employer
   engaged in a business affecting commerce within the meaning of section 3(5) of the Act, 29
   U.S.C. � 652(5).

3. Mr. Hargraves. an OSHA compliance officer,
   conducted the inspection of Bay State's workplace pursuant to a search warrant between
   April 12, 1988, and June 8, 1988. The compliance officer was accompanied by Bay State's
   Assistant Superintendent O'Brien. (Tr. 66, 72). Bay State had between 30 and 35 employees
   at the foundry. As a result of the inspection, Bay State was issued Serious Citation No.
   1, Willful Citation No. 2, and Other Citation No.3.

4. Serious Citation No. 1 deals with employee
   excessive exposures to copper dust, an air contaminant listed in Table Z-1 of 29 C.F.R. �
   1910.1000 (a) (2) and exposure to excessive lead under 29 C.F.R. � 1910.1025. The main
   sources of exposure in ingot production are dust emitted during sorting, briquetting of
   scrap and fumes emitted during charging of the furnace and other operations.

5. In order to determine the level of exposure in
   each of the instances, the compliance officer obtained airborne samples. These samples
   were in turn sent by certified mail to the Occupational Safety and Health Laboratory in
   Salt Lake City. Testimony of Mr. Abel (Tr. 246).

6. The air contaminant samples were picked up at
   the post office by a laboratory aide; delivered to the laboratory where they were handled
   under careful standard operating procedures culminating with the entry of the test results
   on the form 91B's. Testimony of Mr. Abel (Tr. 232-242; 252-253). The testing was a
   technique known by its acronym of ICP, Inductively Coupled Plasma, done with an atomic
   emission spectrophotometer. (See Complainant's Ex. 14).

7. Respondent argues that there is no assurance
   that proper procedures were followed. But there is not evidence that proper procedures
   were not followed. What we have is evidence of routine practice by the testing laboratory
   which is relevant in proving the conduct of that organization in the testing of the Bay
   State samples.

SERIOUS CITATION NO. 1

Item 1(a) and Item 1(b)

alleged violation of 29 C.F.R. � 1910.1000(a) (2) and 29 C.F.R. �
1910.1000 (e)

8. Item 1(a) alleged three instances of an
   overexposure to copper dust in violation of 29 C.F.R. � 1910.1000 (a) (2). The compliance
   officer observed three employees preparing scrap for processing in respondent's furnaces.
   The employees were the Logeman Briquette Operator, the D&J Briquette Operator and the
   Sorter at the composition table, testing revealed PEL's of 8.61 �g/m 3 , 2.23
   �g/m 3 , and 2. 55 �g/m 3 respectively. Testimony of Mr. Hargraves
   (Tr. 121-127; Complainant's Ex. 3).

9. Mr. Hargraves described the duties of the three
   affected employees. The Logeman Briquette Operator places the automotive radiators into
   the briquette machine. (Complainant's Ex. 2, Photos taken April 13, 1988, Frames 16-18;
   Photos taken May 31, 1989, Roll 1, Frames 2-6). The operator activates the cycle of the
   briquette machine to compress the automotive radiator into a 14-inch block of scrap
   material. He then loads the radiator into the briquette machine, walks over to the
   operating panel, cycles the machine and returns to the ejection area, takes the block and
   stacks it. (Tr. 121-2). The exposures to lead and copper occurred when the automotive
   radiators are handled in three places during this operation: (1) when the scrap is put
   into the machine; (2) when the scrap is removed from the ejection area; and, (3) when the
   scrap is stacked onto the pallet. Testimony of Mr. Hargraves (Tr. 122).

10. The D&J Briquette Operator has duties
    similar to the Logeman Briquette Operator, although there is automatic handling of the
    scrap in that operation. Testimony of Mr. Hargraves (Tr. 122); (Complainant's Ex. 2,
    Photos taken April 13, 1988, Frames 13-15; Photos taken May 31, 1989, Roll 1, Frames
    8-17). There were two times of potential dust exposure; (1) when a radiator was loaded
    from the floor to the Logeman Briquette machine; and, (2) when the scrap was ejected from
    the machine. Testimony of Mr. Hargraves (Tr. 124-125.).

11. A Sorter sorts scrap at a vibratory table
    which, when activated, shakes the material toward the Sorter where he can determine the
    type of scrap and which barrel it will go into. Testimony of Mr. Hargraves (Tr. 126-7);
    (Complainant's Ex. 2, Photos taken April 13, 1988, Frames 4-6).

12. The penalty in this item was group with the
    following Item, 1(b). The compliance officer's decision to group the violations was in
    pursuance of the Field Operations Manual. The citation was considered "serious"
    because of the ineffectiveness of the respiratory protection program in conjunction with
    the overexposure to lead and copper. Testimony of Mr. Hargraves (Tr. 127).

13. Item 1(b) alleged a violation of 29 C.F.R.
    1910.1000(e) for a failure to determine and implement feasible administrative or
    engineering controls to reduce the employee exposure to copper dust to the permissible
    exposure limit. The Secretary suggested implementing and testing control methods including
    an exhaust ventilation and job rotation.

14. The Respondent advances several arguments
    concerning Item 1(b). Respondent argues that: (1) the standards are invalid, (2) the
    Secretary did not establish the presence of copper dust, (3) the Secretary did not
    consider the respirator protection factor, (4) there is no evidence of any hazard, (5)
    there is no evidence of employer knowledge, and finally, that the Secretary failed to
    establish controls were technologically and economically feasible.

15. The Respondent's argument concerning the
    validity of 29 C.F.R. 1910.1000 has been earlier considered in this decision.

16. Bay State's argument that the Secretary did
    not establish the presence of copper dust, rests upon the testimony of Mr. Abel who stated
    that he could not determine by the analytical technique the difference between copper dust
    and copper fumes in the sample. (Post-hearing brief at 26; Tr. 275-76).

17. The argument is unpersuasive. Mr. Hargraves
    observed the nature of the work, which was sorting and briquetting. He was sampling for
    copper dust. There was no source of copper fumes near the employees involved. (Tr. 486).
    Mr. Hargraves testimony is credited. The samples of elemental copper represent copper
    dust.

18. The Respondent relies on its use of
    respirators. But Bay State did not have an effective respirator program in place at the
    time of the inspection. (See �� 40-47). In describing the requirements for an effective
    respirator program, both the lead standard and the applicable air contaminant standard for
    copper refer to section1910.134(b).See sections 1910.1025(b) (4) and 1910.1000(e). The
    protection factor of the respirators was properly not considered.

19. The health effects of excessive copper
    exposure include mild irritation of the skin, eye, nose and throat. However, exposure to
    excessive copper in conjunction with excessive lead has a greater adverse effect than for
    copper alone. (Complainant's Ex. 17; Testimony of Mr. Hargraves, Tr. 127-130).

20. As to Bay State's knowledge of employee
    exposure to excessive copper dust, it is found that the employer had at least constructive
    knowledge. Bay State is a brass and bronze ingot manufacturer. Testimony of Mr. Powers
    (Tr. 553). It is officially noticed that, both brass and bronze are copper alloys. The
    nature of the work, the sorting and briquetting of scrap in the manufacturing process
    produced copper dust. Testimony of Mr. Hargraves. (Tr. 486). It is perhaps for these
    reasons that respondent relies heavily in this argument upon the wearing of respirators by
    employees. (Respondent's Brief, pp. 39-40). However, given the problems of the respirator
    program elsewhere described in this opinion it is found that with reasonable diligence Bay
    State should have known of the excessive copper dust.

21. Engineering controls were technologically and
    economically feasible for copper dust under section 1910.1000 (e). [[10]] The Secretary of
    Labor relies upon testimony as to the feasibility of engineering controls for lead dust as
    controlling for copper dust. It is argued that the same engineering controls would
    eliminate excessive exposure to each because copper and lead dusts are generated at the
    same time and by the same processes. Testimony of Mr. Hargraves (Tr. 80-82, 118).
    Similarly, in arguing the deficiencies of engineering controls for copper, Bay State
    asserts that the deficiencies for controls for lead well illustrate those for copper.
    (Respondent's Brief, p. 41). As described in paragraphs 35- 39, engineering controls are
    economically and technologically feasible.

22. Three employees were exposed to excessive
    copper dust; each exceeded the permissible exposure limit. (Complainant's Ex. 3). These
    were the exposures for the Logeman Briquette Operator (8.61 �g/M 3 ), D&J
    Briquette Operator (2.23 �g/M 3 ), and Sorter Composition Table 2.55 �g/M 3 ).

Item 2,

alleged violation of 29 C.F.R. � 1910.1025(c)(l).

23. This item alleges that Bay State exposed
    employees to lead in concentrations more than 50 micrograms per cubic meter of air
    averaged over an eight-hour period. Nineteen separate instances were cited. The standard
    states that:

the employer shall assure that no employee is
exposed to lead at concentrations greater than fifty micrograms per cubic meter of air (50
gg/ 1-m3) averaged over an 8-hour period.

24. As a result of the stay at the time of the
    inspection of paragraph (e)(l) for Bay State's industry, under Steelworkers, that industry
    was:

(I)mmediately required to meet the PEL of 50 �g/m 3
by some combination of engineering work practice, and respirator control. 647 F.2d at
1311.

25. Critical in assessing what happened in this
    case regarding Item 2 of the citation is the text of paragraph (c)(3), which provides:

When respirators are used to supplement
engineering and work practice controls to comply with the PEL and all the requirements of
Paragraph (f) have been met, employee exposure, for the purpose of determining whether the
employer has complied with the PEL, may be considered to be at the level provided by
the protection factor of the respirator for those periods the respirator is
worn...[Emphasis added].

26. The nineteen specific instances are proved.
    OSHA forms 91B, Complainant's Exhibit 3, Complainant's Exhibit 6. This is from the
    sampling of inorganic lead. Testimony of Mr. Hargraves (Tr. 145-146). It is undisputed
    that the employees involved were wearing Model 9920 disposable dust respirators which are
    manufactured by the 3M Company. These respirators had a protection factor of ten.
    Testimony Mr. Hargraves (Tr. 155-156). Except for one instance (a Logeman Briquette
    Operator sampled on April 13, 1988) would a factor of ten times the PEL be exceeded. The
    Secretary of Labor's case turns on whether the protection factor should be applied. This
    depends on whether all the requirements of paragraph (f) of the section 1910.1025 have
    been met.

27. For the reasons stated in paragraphs 40-47,
    all the requirements in paragraph (f) have not been met, and the respondent is not
    entitled to the ten-point protection factor. The Secretary has thus established a
    violation of Item 2.

Item 3(a) and Item 3(b),

alleged violation of 29 C.F.R. � 1910.1025(d)(8)(i) and 1910.1025(d)(8)(ii).

28. Under 29 C.P.R. � 1910.1025(d)(8)(i), the
    employer is required to notify each employee in writing within five working days of
    receipt of lead exposure monitoring results of exposure of the employee. The Respondent
    conducted air sampling before the inspection on November 18, 1985, August 20, 1986,
    January 5, 1988, and March 24, 1988. (Complainant's Ex. 4).

29. Item 3(b), alleged a violation of 29 C.F.R. �
    1910.1025(d)(8)(ii) which states whenever exposure monitoring indicates the representative
    employee exposure, without regard to respirators, exceeds the PEL, the employer is
    required to notify affected employees in a written statement that the PEL was exceeded and
    provide a description of the corrective action taken or to be taken to reduce exposure to
    or below the PEL.

30. The Respondent argues; (1) the citation
    extends beyond the six-month statute of limitations as some air monitoring results were in
    1985 and 1986, (2) there was no obligation to conduct monitoring or if testing was done,
    no obligation to notify employees of the results, (3) it is unclear as to which PEL. 200
    �g/m 3 or 50 �g/m 3 , OSHA regards as the trigger for this standard.

31. To the extent that the cited items concern air
    monitoring results in 1985 and 1986, Bay State persuasively argues that the allegations
    extend beyond the six-month statute of limitations prescribed in 29 U.S.C. section 658(c).
    However, the argument that there was otherwise no obligation to notify employees of the
    monitoring results on the ground that the Secretary had not proved any requirement for
    initial or additional monitoring ignores the plain wording of the cited standards and is
    less consistent with the purposes of the Occupational Safety and Health Act. 29 U.S.C.
    section 651(b). The final argument, that the citation does not mention the PEL said to
    trigger the standard is rejected for the same reason.

32. Except as to the aforementioned monitoring
    results in 1985 and 1986, the citation items are proved. Testimony of Mr. Hargraves (Tr.
    162); Complainant's Ex. 4; O'Brien Deposition, Complainant's Ex. 9 (p 17).

33. The significance of proper notification of
    employees under these standards is stressed in the testimony of Mr. William Revoir, an
    impressive expert on respirators. (Tr. 507- 517). In his opinion, receiving information on
    potential hazards motivates an employee to exercise care in the use of his respirator.
    (Tr. 509).

34. Bay State was in violation of Items 3(a) and
    3(b), except for what has been noted concerning the statute of limitations.

Item 4,

alleged violation of 29 C.F.R. � 1910.1025(e)(l).

35. The Respondent was cited for a lack of
    engineering controls at four work stations for the Logeman Briquette Operator, the D&J
    Briquette Operator, and the Sorters at the composition table and brass table. As discussed
    elsewhere in this opinion, the applicable PEL for this purpose was 200 �g/m 3 .
    The descriptions of the first three positions (the briquette operators and the sorter at
    the composition table) are described in paragraphs 9-11. The Sorter at the brass table
    stands in front of a stationary table, sorts brass according to type, and places it in an
    appropriate bin. Testimony of Mr. Hargraves (Tr. 132); Complainant's Ex. 2 (Photos taken
    April 13, 1988, Frames 10-12).

36. Mr. Hargraves and Mr. Cassady, well qualified
    witnesses, testified on the feasibility of reducing the levels of lead through the use of
    at the Bay State Foundry. Each recommended a "step" increase type of control.
    That is, start with controls or practices costing the least. Mr. Hargraves suggested three
    possible ways to control the exposure. First, a dust suppressant mist system which cost
    about $800 per unit could reduce the dust level significantly. (Tr. 179-181). Second, a
    piece of equipment to electrostatically charge mist particles which cost about $2,400 to
    $3,000 per unit. Finally, the next step would be a push-pull vacuum, system at about
    $5,000 per unit. (Tr. 180-85).

37. Mr. Cassady first recommended a simple
    reexamination of housekeeping efforts, such as a vacuum cleaning system, a water wetdown
    system, or the use of pine-treated sawdust. (Tr. 23-24). Second, a fine mist
    dust-suppressant system at a cost of $2,500 per unit could be utilized. (Tr. 26-27).
    Finally, the most expensive alternative, a push-pull ventilation system, which could run
    from $10,000 to $20,000 per table, depending upon whether a new "baghouse
    (collection) capacity was necessary.

38. Both witness offered numerous suggestions
    which were reasonably priced. The Secretary has proved that engineering controls are both
    economically and technologically feasible.

39. The Respondent should have known of its
    responsibility under section 1910.1025(e) to meet the 200 microgram per cubic meter level
    through the use of engineering controls; this goes back to the March 1, 1979, order in
    Steelworkers and the Secretary's 1981 Federal Register publication.

Items 5(a) through 5(c), alleged violation of 29 C.F.R. �� 1910.1025(f)(2.(i),
1910-1025(f)(3)(ii), 1910.1025(f)(4)(i) and 1910.134(b), (d), (e), and (f).

40. These items deal with the proper selection and use of respirators. Under 29 C.F.R. �
    1910.1025(f)(2)(i) the employer is required to select an appropriate respirator for its
    employees. The complaint alleges that the Logeman Briquette Operator was not wearing an
    appropriate respirator. The sampling revealed that the Logeman Briquette Operator was
    exposed at an 8-hour time weighted average (hereinafter TWA) of 1.05 �g/m 3 , or
    21 times the PEL. (Complainant's Ex. 3). The 3M respirator which the Logeman Briquette
    Operator used has a maximum protection factor of only 10 times the PEL. The respirator was
    perforce inappropriate.

41 Section 1910.10-125(f)(3)(ii) dealing with
respiratory protection requires that the employer perform quantitative and qualitative
face fit tests at the time of initial fitting and at least every six months thereafter.
The violation of this standard was conceded during the inspection and O'Brien deposition.
Testimony of Mr. Hargraves (Tr. 297); O'Brien Deposition, Complainant's Ex. 9 (pp. 21-25).
As to the degree of failure to comply with the standard, see the testimony of Mr. Revoir.
(Tr. 507-511).

42. Section 1910-1025(f)(4)(i) requires that the
    employer institute a respiratory protection program in accordance with section
    1910.134(b), (d), (e), and (f). Concerning Item 5(c), the Complaint in Paragraph V (I)(2)
    alleges the following:

(1) written standard operating procedures
governing the selection and use of respirators w ere not established (1910.134-134(b) (1):
and

(2) respirators were worn when conditions such as growth of beard, side burns, a skull
that projected under the facepiece, or temple pieces on glasses, prevented a good face
seal. Employees who were determined to exceed the permissible exposure limit of 0.05 �g/m 3
as listed in Serious Citation #1, Item #2 in a number of cases were allowed to wear beards
and facial hair when wearing a single use negative pressure respirator (3M 9900)
(1910.134(e)(5)(i)).

43. Written standard operating procedures were not
    made available to the compliance officer, and he otherwise did not see any. Testimony of
    Mr. Hargraves (Tr. 198, 471). On cross-examination it was brought out that the compliance
    officer did not look at all of the walls to see if any instructions were posted. (Tr.
    470). However, there is no evidence indicating that any instructions were posted or
    otherwise existed. The compliance officer's inference as to their non-existence is
    credited. As a matter of previous history, the Secretary notes that this condition had
    previously existed, and Bay State had reported to OSHA in 1982 that the matter had been
    corrected. Complainant's Ex. 19 (Nov. 1, 1982, letter to Area Director from Paul Rothery).

44. Three to five employees had excess facial hair
    and this interfered with the protective seal of the respirators. Testimony of Mr.
    Hargraves (Tr. 198-199, 474, 475).

45. Facial hair passing between the respirator and
    the wearer's face increases the penetration of contaminants into the interior of the
    respirator. Growth even in the first one to three days has been shown to practically
    eliminate the protection factor of the respirator. Testimony of Mr. Revoir (Tr. 511-512).

46. A representative of the 3M company refused to
    certify employees with facial hair to wear 3M respirators. Testimony of Mr. Hargraves (Tr.
    414); that of Mr. Powers (Tr. 605).

47. On the matter of employer knowledge and
    whether the violations under Item 5 were serious, as elsewhere discussed in this opinion,
    Bay State was aware of the high blood lead levels of its employees. This establishes
    employer knowledge that the respirator program was ineffective and that the resulting
    hazard was serious. R.S.R. Corp. v. Donovan, 747 F.2d 294, 304 (5th Cir. 1984).

Item 6

alleged violation of 29 C.F.R. � 1910.1025(g)(2)(viii).

48. The cited standard requires that:

the employer shall prohibit the removal of lead
from protective clothing or equipment by blowing, shaking or any other means which
dispenses lead into the air.

49. On April 13, 1988, a briquette operator used
    compressed air to clean himself before leaving the work area. Testimony of Mr. Hargraves
    (Tr. 203); O'Brien Deposition, Complainant's Ex. 9 (p. 30) . Compressed air was also used
    to clean equipment. Complainant's Ex. 9 (p. 31).

WILLFUL CITATION NO. 2

Item 1,

alleged violation of 29 C.F.R. � 1910.1025(i)(3)(i).

50. The cited paragraph, requires that:

the employer must assure that employees who work
in areas where their airborne exposure to lead is above the PEL, without regard to the use
of respirators, shower at the end of the work shift.

51. Employees were not required to shower at the
    end of a shift, and all employees did not take a shower. Testimony of Mr. Hargraves (Tr.
    98, 104, 304, 306, 379). One employee who did not shower was Richard Turgeon, whose lead
    exposure exceeded 50 micrograms per cubic meter. Complainant's Ex. 4 (Tr. 379).

52. Bay State did not enforce the shower rule
    because it felt that showering was a matter of personal choice. Testimony of Mr. Hargraves
    (Tr. 476-477). Bay State contends that there was established no feasible means for it to
    comply with the standard. Under Steelworkers, the burden of proof of any lack of
    feasibility at this stage would be on the employer. Moreover, the standard was clearly
    enforceable by a stringent work rule. Testimony of Mr. Hargraves (Tr. 476-477).

53. In pursuing its own rule of personal choice,
    Bay State acted in intentional disregard of cited standard's requirements. The violation
    is found to be willful. Ensign-Bickford Co. v. Occupational Safety and Health, 717 F.2d
    1419 (D.C. Cir. 1982) ; F.X. Messina Construction Corp. v. OSHRC, 505 F.2d 701,702 (1st
    Cir. 1974).

54. On the issue of willfulness, Bay State argues
    that there was uncertainty in Steelworkers as to the application of the lead standard to
    it's industry. Respondent's Brief (p. 107). This is reflected in, the advice of counsel as
    described in Mr. Powers' testimony. (Tr. 588, 589). The assertion of counsel at the
    hearing in this regard is at Tr. 623. The text of Steelworkers as to its application to
    Bay State's industry is clear. Under the authorities cited in pages 19-23 of Complainant's
    brief, there is no justification for excusing the willful conduct of the employer for this
    reason; to do so would indeed be a signal to other employers to ignore clear OSHA mandates
    at the expense of employees intended to be protected by the Act.

Item 2, as amended (Tr. 390-91)

alleged violation of 29 C.F.R. � 1910.1025(j)(3)(i)(A).

55. On October 19, 1981, Bay State was issued a
    serious citation for violations of section 1910.1025(j)(3)(i)(A):

Medical examinations and consultations for lead
were not made available annually for each employee for whom a blood sampling test
conducted during the preceding 12 months indicated a blood-lead level at or above 40
�g/100 g.

56. The Citation set forth an abatement date of
    February 22, 1982. This item was one of two items contested by Bay State. A settlement was
    reached containing the following language:

(4)...(a) The abatement date set for item 4,
citation No. 1 - 29 C.F.R. 1910.1025-(j)(3)(i)(A) is extended from February 22, 1982, to
October 15, 1982. Respondent agrees to furnish a progress report to the Area Director on
or before July 15, 1982 and a final report on or before October 15, 1982.

(6) Respondent certifies that the violations
alleged have abated or will be abated by the abatement dates as shown in the citation as
amended and that the penalty, as amended, has been paid. Respondent agrees to comply with
the Act in all respects in the future. Complainant's Ex. 19.

57. The settlement was approved by an
    administrative law judge's order of April 26, 1982; this was subsequent to the
    Steelworkers, decision. In a November 1, 1982, progress report signed by Bay State's
    President the following representation was made concerning the aforementioned Item No. 4:

Medical examinations and consultations for lead
for each employee with a blood-lead level at or above 40 �g/100 g. are now being
arranged. Complainant's Ex. 19.

It further represented that the action would be
taken by the end of 1982.

58. Complainant's Exhibit 7 shows 85 readings for
    28 separate employees with blood-lead readings at the action level; these were obtained by
    Bay State from January 1986 to April 1988. Except for two employees with readings at the
    medical removal levels (Tr. 605), no medical examinations were made available. Testimony
    of Mr. Powers (Tr. 605-607). See also the O'Brien Deposition, Complainant's Ex. 9 (pp.
    26-29); and the testimony of Mr. Hargraves, (Tr. 107-225, 302-303).

59. The above-described circumstances demonstrate
    an intentional disregard of the requirements of the cited standard. Bay State's argument
    that the cited standard does not apply because of its limitation to employees covered by
    section 1910.1025(j)(l)(i) is unpersuasive. While there is no evidence reciting in haec
    verba the prerequisite of paragraph (j)(l)(i), the described settlement history, and the
    cited testimony of Mr. Powers are implicit admissions of the applicability of the
    standard.

OTHER THAN SERIOUS CITATION NO. 3

Item 1,

29 C.F.R. � l910.95 (c) (l).

60. The Complaint charges the Respondent with
    failure to administer a continuing, effective hearing conservation program for employees
    whose noise exposure equaled or exceeded an 8-hour time-weighted average sound level (TWA)
    of 85 dba in accordance with 29 C.F.R. � 1910.95(c)(l). The Complaint alleges that about
    10 employees were exposed to this condition, including the Knockout Operators for furnaces

I and #2, the Sorter at the composition table and the D&J Briquette Operator. The

sample results are contained in Complainant's Exhibit No. 6. They support the allegation
of excessive noise triggering the requirement for a continuing, effective hearing
conservation program.

61. For example, on OSHA 92, #15419575, a
    Briquette operator, was sampled for 393 minutes with an equivalent exposure of 85.9 dba.
    The hearing conservation amendment (HCA) calculation under paragraph (c) of the standard
    is 87.6 dba. The Knockout Operator at Furnace #1 was sampled for 218 minutes with an
    equivalent exposure of 94.0 dba; with regard to the HCA, the noise level was 89.0 dba.
    Complainant's Ex. 6 (Sampling No. 16010837). The Knockout Operator at Furnace #2 was
    sampled for 272 minutes and had an equivalent exposure of 90.9 dba; under the HCA the
    noise level was 88.3 dba. Complainant's Ex. 6 (Sampling No. 15419591). Finally, the Sorter
    at the composition table was  tested for 425 minutes and had an equivalent exposure
    of 85.1 dba with an HCA noise level of 87.2 dba. complainant's Ex. 6 (Sampling No.
    15419559).

62. With respect to the content of the OSHA 92,
    see also the testimony of Mr. Hargraves (Tr. 208). All continuous intermittent and
    impulsive sound levels from 80 to 130 decibels are integrated into the noise measurements.
    See paragraph (d) (2) (i) of the standard.

63. While there was some type of hearing protection, most likely a type of earplug, there
    was no audiometric testing. Testimony of Mr. Hargraves (Tr. 212). Bay State argues that
    the evidence is insufficient to establish knowledge of the cited condition. The
    availability of some form of hearing protection suggests an awareness of a problem of
    excessive noise.

Item 3,

2,9 C.F.R. � 1910.1025(g)(2)(vii).

64. The cited standard requires a specific caution
    label for lead-contaminated clothing.

65. There was no such label at Bay State's
    facility. Testimony of Mr. Hargraves (Tr. 213-214).

Item 4,

29 C.F.R. � 1910.1025(i)(4)(iv).

66. The Complaint alleges that the Respondent
    allowed employees who were exposed to lead above the PEL to enter the lunchroom without,
    removing surface lead dust from protective work clothing by vacuuming, downdraft booth or
    other cleaning methods.

67. Employees entered the lunchroom without
    removing surface lead. The concern here is with the potential ingestion of dust that may
    contain Iead, thereby the blood levels of the employees. Testimony of Mr. Hargraves (Tr.
    213-214).

Item 5,

29 C.F.R. � 1910.1025 (j)(3)(iv)(A)(1-6).

68. The Complaint alleges that the respondent
    failed to provide physicians conducting medical examinations or consultations under 29
    C.F.R. section 1910.1025 with:

69. a description of the affected employee's duties
    as they relate to the employee's exposure:

70. the employee's exposure level or anticipated exposure level to lead and to any other
    toxic substance applicable;

71. a description of any personal protective equipment used or to be used;

72. prior blood lead determinations; and

73. all prior written medical opinions concerning the employee in the employer's possession
    or control.

74. According to Mr. O'Brien, since no routine
    physicals were given there was no reason to forward the information to Dr. Burns.
    Testimony of Mr. Hargraves (Tr. 214). Company policy was to not offer physical
    examinations. (�� 55-59).

Item 6,

29 C.F.R. � 1910.1025(l)(l)(iv).

70. The Complaint alleges that the Respondent
    failed to provide training at least, annually for each employee subject to lead exposure
    at or above the action level, or for whom the possibility of skin irritation existed.

71. The training was not provided. Testimony of
    Mr. Hargraves (Tr. 216-217); that of Mr. Powers (Tr. 589-92). Training is significant in
    providing information on potential hazards to employees; it motivates them to exercise
    care in the use of respirators. Testimony of Mr. Revoir (Tr. 509).

Items 7(a) through 7(e),

29 C.F.R. � 1910.1025(n), subparagraphs (l)(ii)(A) through (E)

72. Each of these items deal with recordkeeping
    violations under 29 C.F.R. � 1910.1025(n). Item 7(a) alleges a violation of section
    1910.1025(n)(l)(ii)(A) requiring that exposure monitoring dates, number, duration location
    and results of each of the samples taken, including a description of the sampling
    procedure used to determine representative employee exposure where applicable be included
    in the required records.

73. Item 7(b) alleges a violation of section
    1910.1025(n)(l)(ii)(B) because the respondent failed to establish and maintain a
    description of the sampling and analytical methods used in monitoring required under 29
    C.F.R. � 1910.1025(d), and evidence of the accuracy of said methods.

74. Item 7(c) alleges the Respondent failed to
    record the type of respiratory protective devices, if any, worn by employees sampled for
    lead exposure pursuant to 29 C.F.R. section 1910- 1025(d).

75. Item 7(d) alleges a violation of section
    1910.1025(n)(l) (ii) (D), because the Respondent failed to record the name, social
    security number, and job classification of each employee monitored for lead exposure
    pursuant to 29 C.F.R. � 1910.1025 (d), as well as of all other employees whose exposure
    said monitoring was intended to represent.

76. Item 7(e) charges that the respondent violated
    section 1910.1025 (n)(l) (ii) (E), when monitoring for lead exposure pursuant to 29 C.F.R.
    and failed to record environmental variables that could have affected the measurement of
    employee exposure.

77. The extent of the Respondent's recordkeeping
    on the above-noted matters was submitted on Complainant's Exhibit 4. It is incomplete. See
    the testimony of Mr. Hargraves (Tr. 218-219).

Item 8(a) through 8(d)

29 C.F.R. � 1910.1025(n), subparagraghs (2)(ii)(A) through (D).

78. Item 8 also deals with recordkeeping
    violations under section 1910.1025(n). Item 8(a) charges the Respondent with a violation
    of 29 C.F.R. section 1910.1025(n)(2)(ii)(A), and alleges the Respondent failed to record
    the social security number and a description of the duties of employees monitored for
    blood lead level pursuant to 29 C.F.R. � 1910.1025(j).

79. Item 8(b) charges the respondent with a
    violation of section 1910.1025 (n) (2) (ii) (B), and alleges the Respondent failed to
    include the written opinions in the record of employees monitored for blood Ievels
    pursuant to 29 C.F.R. � 1910.1025(j).

80. Item 8(c) alleges a section
    1910.1025(n)(2)(ii)(c) violation because the Respondent failed to include with the record
    of medical surveillance performed pursuant to 29 C.F.R. � 1910.1025(j) the result of any
    airborne exposure monitoring done for the employee and the representative exposure levels
    supplied to the physician.

81. Item 8(d) alleges the respondent violated the
    standard set forth at 29 C.F.R. � 1910.1025(n)(2)(ii)(D) in that it failed to include any
    employee medical complaints related to lead in the medical surveillance for lead exposure
    conducted pursuant to 29 C.F.R. � 1910.1025(j).

82. The Respondent failed to maintain a proper
    amount of information on the blood lead results. Mr. O'Brien provided Mr. Hargraves copies
    of blood lead results that were incomplete under the standard. Testimony of Mr. Hargraves
    (Tr. 221); Complainant's Ex. 7, (last fourteen pages). Again, a review of the referenced
    pages shows that the required information was not kept.

G. Penalties

83. The determination of what constitutes an
    appropriate penalty is within the discretion of the Review Commission. Long Manufacturing
    Co., v. OSHRC, 554 F.2d 902 (8th Cir. 1977). In determining the penalty, the Commission is
    required to give due consideration to the size of the employer, the employer's good faith,
    history of previous violations and the gravity of the violation

84. The gravity of the offense is the principal
    factor to be considered Nacirema Operating Co., 1. BNA .1 (Rev. Com. 1972). With respect
    to Items 1(a) and (b), concerning exposure to excess copper dust and the failure to
    determine and implement feasible administrative or engineering controls, the hazards and
    therefore the consequent gravity, are those described in Complainant's Exhibit 17, a NIOSH
    document entitled "Occupational Health Guideline for Copper Dusts and Mists."
    The short-term effects and long-term effects are the following:

85. Short-term Exposure: Powdered copper or dusts
    or mists of copper salts may cause a feeling of illness similar to the common cold with
    sensations of chills and stuffiness of the head. Small copper particles may enter the eye
    and cause irritation, discoloration, and damage.

86. Long-term Exposure: Repeated or prolonged exposure to copper dusts or mists may cause
    skin irritation or discoloration of the skin or hair. p. 1.

In this case is the added factor of concern for
the combined effect of exposure to excessive amounts of copper with excess lead. Testimony
of Mr. Hargraves (Tr. 129).

85. The harmful effects of excessive amounts of
    airborne lead have been well documented. As noted in Steelworkers:

. . . OSHA amassed voluminous evidence of the
specific harmful effects of lead at particular blood-lead levels and correlated these
blood-lead levels with air-lead levels. By this means OSHA was able to describe the actual
harmful effects of lead on a worker population at both the current PEL and the new PEL. In
its proof of significant harm from lead at the current PEL and the careful measurement of
the likely reduction in that harm at the new PEL the lead standard stands in marked
contrast to the benzene standard struck down by the Supreme Court.

United Steelworkers of America, AFL-CIO-CLC v.
Marshall, 647 F.2d 1189, 1202 (1980): cert den. Sub Nom. Lead Industries Assn. v. Donovan,
453 U.S. 913 (1981).

86. At pages 1238 through 1267 Steelworkers
    specifically accepted OSHA's findings as to the adverse health effects of lead, including
    particularly, damage to the blood system, the nervous system, the kidneys, and the
    reproductive system. The described gravity of exposure to excessive concentrations of lead
    is high and "serious" for purposes of penalty assessment under Citation 1 and
    Citation 2.

87. As previously discussed, the two violations in
    Citation 2 have been found to be willful violations. There is also some history of
    previous violations referenced in Complainant's Exhibit 19. As to the size of the company,
    Bay State has 30 to 35 employees. Pleadings. There is no persuasive evidence of good faith
    upon the part of the employer. The testimony of the plant manager that Bay State acted on
    the advice of counsel that the "lead standard" did not apply to its industry
    (Tr. 577, 588-89) is not considered to support a finding of "good faith" upon
    the part of Bay State for the same reasons that it was not considered to immunize the
    employer from responsibility for its own actions with respect to Citation 2.

88. Against this background regarding the gravity
    of the violations, the size of the employer, and the absence of good assessments of the
    Secretary of Labor are affirmed except for Citation 1, Item 3, for which some penalty
    reduction is made because of a vacation of a portion of the citation.

ORDER

IT IS HEREBY ORDERED THAT:

SERIOUS CITATION No. 1

1. Items 1(a) and 1(b), violations of 29 C.F.R. �
   1910.1000 (a) (2) and 29 C.F.R. � 1910.1000 (e) with a penalty of $480 are affirmed.

2. Item 2, a violation of 29 C.F.R. � 1910.1025(c)(l) with a penalty of $780 affirmed.

3. Items 3(a) and 3(b), violations of 29 C.F.R. section 1910.1025(d)(8)(i) and 29 C.F.R.
   � 1910.1025(d)(8)(ii) are affirmed in part, and a penalty of $400 is assessed.

4. Item 4, a violation of 29 C.F.R. � 1910.1025(e)(l) with a penalty of $640 is affirmed.

5. Items 5(a), 5(b), and 5(c), violations of 29 C.F.R. section 1910.1025(f)(2)(i), 29
   C.F.R. � 1910.1025(f)(3)(ii), 29 C.F.R. � 1910.1025(f)(4)(i) and 1910.134(b), (d), (e),
   and (f) with a penalty of $560 are affirmed.

6. Item 6, a violation of 29 C.F.R. � 1910.1025(g)(2)(viii) with a penalty of $640 is
   affirmed.

WILLFUL CITATION NO. 2

7. Item 1, a violation of 29 C.F.R. �
   1910.1025(l)(3)(i) with a penalty of $8,000 is affirmed.

8. Item 2, as amended, a violation of 29 C.F.R. section 1910.1025 (l) (3) (i) A with a
   penalty of $8,000 is affirmed.

OTHER THAN SERIOUS CITATION NO. 3

9. Item 1, 29 C.F.R � 1910.95(c)(l) is affirmed.

10. Item 3, 29 C.F.R. � 1910.1025(g)(2)(vii) is affirmed.

11. Item 4, 29 C.F.R. � 1910.1025(i)(4)(iv) is affirmed.

12. Item, 5, 29 C.F.R. � 1910.1025(j)(3)(iv)(A)(1-6) is affirmed.

13. Item 6, 29 C.F.R. � 1910.1025(l)(l)(iv) is affirmed.

14. Items 7(a) through 7(e), 29 C.F.R. � 1910.1025(n), subparagraphs (1)(ii)(A) through
    (E) are affirmed.

15. Item 8 (a) through 8(d), 29 C.F.R. �
    1910.1025(n), subparagraphs (2)(ii)(A) through (D) are affirmed

Paul A. Tenney

Judge, OSHRC

DATED: May 21, 1990

Washington, D.C.

FOOTNOTES:

[[1]] Bay State also makes other arguments involving the lead
standard the allegations exposure to excessive levels of copper dust under 29 C.F.R. �
1910.1000. These arguments raise issues which we did not ask the parties to brief and
which, in our judgement are without merit. Bay State's major contention--that the decision
in United Steelworkers v. Marshall. 647 F.24 1189 (D C. Cir. 1980).cert. denied, 453 U.S.
913 (1981), renders the entire lead standard unenforceable has been rejected in other
cases. Advance Bronze, Inc. v. Dole. 917 F.2d 944 (6th Cir. 1990); Cleveland Aluminum
Casting Co., 83 OSAHRC 21 B5 (No. 84-198, 1985) (ALJ). aff'd without published opinion,
788 F.2d 38 (DC Cir. 1986) Both decisions predate Bay States briefs in this case. As to
Bay State's contention that the Secretary has the burden to establish that employees have
actually ingested the air contaminants in question lead and copper dust, the Commission
has previously rejected similar arguments.. See Titanium Metals Corp of America. 6 BNA
OSHC 1760, 1763-64 & n.11, 1978 CCH OSHD � 22,836, p. 27,615 & n.11 (No. 15411
1978) (in order to establish exposure to an air contaminant above the exposure limit, the
Secretary need only measure the level of containment in the employee's breathing zone, and
such measurements may even be taken before the air is processed by the employee's
respirator). The only citation items in which actual ingestion of the toxic substance is
an explicit element of the alleged violation are those that involve certain provisions of
the lead standard dealing with the level of lead in an employee's bloodstream. Bay State,
however does not point to any specific error on the judges findings that employees in fact
had excessive blood lead measurements

[[2]] While as Bay State points out Abel testified that an
analysis is required in order to distinguish inorganic from organic lead, that remark was
made in the abstract. Abel was responding to hypothetical questions posed by Bay State's
counsel on cross-examination. For example, after testifying that motor vehicle emission
contain lead, Abel was asked "do you know from your knowledge, education and
experience whether the lead in the air in Main Street, Springfield, Massachusetts is
organic or inorganic." He replied that neither he nor anyone else could make that
determination "without analysis." Abel's views regarding the need for analyses
in certain conditions were not directed to the circumstances presented in this case, nor
was Abel asked to comment on Hargraves' opinion that the inorganic nature of the lead
produced in Bay State's operations could be determined by means other than actual chemical
analysis Thus, Abel's testimony does not establish that it would be necessary to conduct
an analysis specifically for inorganic lead if it were already known that the substance
being tested was inorganic in nature

[[3]] Bay State's reliance on our decision in Collter-Kenworth
Co., 13 BNA OSHC 1208, 1986-87 CCH OSHD � 27,867 (No. 80-2848, 1987). vocated by
population. 13 BNA OSHC 2165 1987-90 CCH OSHD � 28,515 (1989), and Spring Air Mattress
Co. 2 BNA OSHC 1416, 1974-75 CCH OSHD � 19,146 (No. 1422,1974) is misplaced. Both cases
are factually distinguishable because they involved situations in which there was actual
evidence that OSHA's exposure measurement included substances or physical agents other
than those covered by the cited standards. Furthermore, Spring Air Mattress was
subsequently overruled to the extent it held that the burden is on the Secretary to prove
that extraneous substances are not present in sufficient quantity to render her exposure
measurements Anaconda Aluminum Co., BNA OSHC 1460, 1465 n.15, 1981 CCH OSHD � 25,300, p.
31,338 n.15 (No 13102. 1981).

[[4]] An "alloy" is defined as a material that is
mixed with one or more metals of a metallic in nature. Webster's Third New International
Dictionary 58 (1971).

[[5]] Bay State objects that the supplemental statement of
reasons is irrelevant here because it postdates the citations at issue. The supplemental
statement, however, reaffirms the conclusions, OSHA reached when it first promulgated the
lead standard. While it appears that OSHA did not identify brass and bronze ingot
manufacturing as a separate industry until after the citations were issued here. OSHA
nevertheless has consistently regarded operations of the type conducted by Bay State as
presenting a hazard of lead exposure within the scope of � 1910.1025. Cf. Smith Steel
Casting Co., 15 BNA OSHC 1901, 1008, 1991 CCH OSHD � 29,314. p. 39,367 (No. 80-2069,
1991) (consolidated) (tracing history of 29 C.F.R. � 1910.1000 to establish that the
Secretary had never altered an exposure limit from its original promulgation).

[[6]] We also decline to consider two other arguments Bay State
raises concerning matters on which we did not ask for briefs. Bay State takes exception to
the judge's ruling that it did not timely file its requests for admissions. That ruling,
however, was within the judges discretion. Bay State also claims that the judge's factual
findings do not correctly identify its industry. Even assuming the judge erred by failing
to find that Bay State is a member of the brass and brass ingot manufacturing industry,
Bay State has failed to show that it was prejudiced by the judge's failure to make the
appropriate factual finding

[[1]] Items 7(a) and 7(b) of Citation No. 1 were withdrawn. (Tr. 205).

[[2]] Item 2 of Citation No. 3 was withdrawn.

[[3]] Section 9 (a) of the Act, 29 U.S.C. � 658 (a) , reads, in pertinent part:

If, upon inspection or investigation, the Secretary or his authorized representative
believes that an employer has violated a requirement of section 5 of the Act, of any
standard, rule or order promulgated pursuant to section 6 of this Act, or of any
regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a
citation to the employer...

[[4]] Section 9(c) of the Act, 29 U.S.C. � 658(c), reads:

No citation may be issued under this section after the expiration six months following the
occurrence of any violation

[[5]] 8 C Wright & A. Miller, Federal Practice and
Procedure, � 2253 at 706 & n. 26 (1970).

[[6]] � 2200.52 General provisions governing discovery.

(a) General.

(1) Methods and limitations.

(ii) requests for admission to the extent provided in � 2200.54;

[[7]] A copy of my January 18, 1989, and April 26, 1989, orders
are appended hereto as Appendix A.

[[8]] 8 C Wright & A. MiIler, Federal Practice and
Procedure, 2263 at 736-737 (1970)

[[9]] 29 C.F.R. 2200.71 Federal Rule of Evidence 801(d) in
pertinent part states a statement is not hearsay if:

(2) Admission by party-opponent. The statement is offered against a party and is (A) the
party's own statement in either an individual or a representative capacity or (B) a
statement of which the party has manifested an adoption or belief in its truth, or (C) a
statement by a person authorized by the party to make a statement concerning the subject,
or (D) a statement by the party's agent or servant concerning a matter within the scope of
the agency or employment, made during the existence of the relationship, or ...

[[10]] Section 1910.1000(e) contemplates that exposure to
excessive levels of toxic substances will be abated by engineering and administrative
controls and that personal protective equipment will be used only in the event that such
controls are not feasible or fail to reduce levels to the permissible limit. It is the
Secretary's burden to establish that controls are technologically and economically
feasible. A control is technologically feasible if it can be adapted to the employer's
operation and is capable of producing a significant reduction in exposure to the
particular toxic substance. Samson Paper Bag Co.. v. OSHC, 8 BNA OSHC 1515 (No. 76-222,
1980).