United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant,

 v. OSHRC Docket No. 21-0718

Denaka Partners, LP, dba Home Rubber

Company, 

 Respondent.

Appearances:

Terrence Duncan, Esq., Office of the Solicitor, U.S. Department of Labor, New York, NY 

 For Complainant 

 Randall C. Schauer, Esq., Fox Rothschild LLP, Exton, PA 

 For Respondent 

BEFORE: Administrative Law Judge Sharon D. Calhoun

 DECISION AND ORDER 

Denaka Partners, LP, d/b/a Home Rubber Co. (Denaka),1 manufactures rubber products, 

such as hoses and belts, at its Trenton, New Jersey, facility. On December 18, 2020, an employee 

was adjusting blade depth on an operating Slitter mill when he lost his balance, and his shirt sleeve 

caught in the mill, pulling his arm into the mill, and resulting in its amputation. Denaka notified 

the Occupational Safety and Health Administration (OSHA) of the accident. OSHA assigned 

Compliance Safety and Health Officer (CSHO) Tracy Townsend to inspect the worksite and, based 

on her investigation, issued a Citation and Notification of Penalty (Citation) to Denaka on June 14, 

2021, alleging serious and willful violations of the Occupational Safety and Health Act of 1970, 

29 U.S.C. §§ 651-678 (Act). 

1 Denaka is the corporate name for Home Rubber. (Tr. 21.) The names were used interchangeably at trial, but OSHA 

issued the citation to Denaka and the notice of contest was filed by Denaka. Therefore, the Court uses Denaka 

throughout this opinion.
2

Denaka timely contested the Citation on July 2, 2021. The Secretary filed a Complaint on 

September 2, 2021, and Denaka filed its Answer on September 23, 2021. The Secretary filed an 

Unopposed Motion to Amend the Complaint and Citation on November 7, 2022, to withdraw 

Citation 1, Item 1, a serious violation of 29 C.F.R. § 1910.219(c)(2)(i), alleging Denaka did not 

guard the Slitter mill to protect the operator from being caught in the rotating shaft while utilizing 

the on/off buttons.2 (Am. Compl., 6.) The Secretary also amended Citation 2, Item 1, which alleges 

a willful-serious violation of the machine guarding standard at § 1910.212(a)(1), to include the 

withdrawn serious allegation. Citation 2, Item 1, also alleges Denaka did not guard the Slitter mill’s 

rotating parts while employees adjusted material on spools and adjusted the depth of knife blades. 

In Citation 2, Items 2, and 3, the Secretary alleges Denaka violated § 1910.1030(f)(2)(1), by failing 

to timely offer the Hepatitis B vaccination series to first aid responders, and § 1910.1030(g)(2)(i), 

for failing to provide an occupational exposure training program to employees assigned to conduct 

cleanup operations. In the Amended Complaint, the Secretary proposed a penalty of $247,705 

reduced to $236,000 in the post-hearing brief. (Am. Compl., 11; Sec’y Post-Hr’g Br. at 25.) 

For the reasons set forth herein, the Court affirms Citation 2, Items 1 and 2, and 

recharacterizes them as serious, affirms Citation 2, Item 3, as willful, and assesses a total penalty 

of $87,963.10. 

 JURISDICTION AND COVERAGE

The Court held a hearing on December 1 and 2, 2022, in Trenton, New Jersey. Both parties 

filed post-hearing briefs on February 13, 2023. The parties stipulated Commission jurisdiction over 

this matter pursuant to section 10(c) of the Act. (Exh. J-1, Facts 1; Law 1.) The parties also 

stipulated Denaka was engaged in business affecting commerce under § 3(3) and § 3(5) of the Act, 

because materials and supplies used by Denaka originated outside New Jersey and products 

manufactured by Denaka were shipped outside New Jersey. (Exh. J-1, Facts 3 and 4; Law 2.)

Therefore, the Court finds it has jurisdiction under § 10(c) of the Act and Denaka is a covered 

employer under § 3(5) of the Act. 

2 Commission Rule 102, 29 C.F.R § 2200.102, provides the Secretary may withdraw a citation “at any stage of a 

proceeding.” Further, “the Secretary's decision to withdraw a citation against an employer under the Act is not 

reviewable by the Commission.” Cuyahoga Valley Ry. Co. v. United Transp. Union 474 U.S. 3, 7 (1985). The Court 

acknowledges the Secretary’s withdrawal disposes of Citation 1, Item 1, and on November 8, 2022, granted the 

Secretary’s Unopposed Motion to Amend Complaint, which included withdrawal of Citation 1, Item 1.
3

STIPULATIONS

The parties submitted the following stipulations as a joint exhibit:

1. The Occupational Safety and Health Review Commission has jurisdiction over 

this matter.

2. Respondent, Denaka partners dba Home Rubber Co., is a corporation organized 

under the laws of the State of New Jersey and doing business in the State of 

New Jersey, maintaining its principal office and place of business at 31 

Woolverton Road, Trenton, New Jersey, 08605, is and at all times hereinafter 

mentioned was engaged in the manufacture of Rubber (sic) products. 

3. The materials and supplies used and / or manufactured by Respondent 

corporation originated and / or were shipped from outside the State of New 

Jersey.

4. Respondent for all relevant times, engaged in business affecting commerce by 

handling goods and or materials which had been moved in commerce. 

5. Beginning on or about December 18, 2021, OSHA’s Marlton, New Jersey field 

office began an investigation of Respondent’s manufacturing facility at the 

above address. 

6. The investigation began after Respondent reported the occurrence of an incident 

at its facility in which one of its employees (sic) left hand and arm were 

amputated while he was working on its Slitter / Rewind machine.

7. At the conclusion of its investigation, OSHA issued the citations and penalties 

that are at issue in this case. 

8. Respondent timely contested the citations and penalties. 

(Exh. J-1.) 

BACKGROUND

Denaka manufactures mechanical and industrial rubber products, such as hoses, belts, 

tubes, gaskets, and sheet rubber, in small volumes upon request, rather than mass-producing items. 

(Tr. 258-59.) After Denaka receives a design order from a customer, employees begin the 

manufacturing process by mixing and compounding rubber specifically for that order. (Tr. 258-

59.) Employees then use Denaka’s mills and machines to create the finished product. (Tr. 259.) Its 

products, which range from tiny rubber gaskets to hoses which convey oil from a ship to shore, 

are “in virtually every industry in the U[nited] S[tates] and Canada.” (Tr. 259.) Denaka, at the time 

of the accident and currently, employees approximately 35 employees. (Tr. 260.) 
4

Denaka’s mill room is roughly 120 feet long by 50 to 60 feet wide and contains a variety 

of colanders, hoists, vents, and mills, including a Slitter mill.3 (Tr. 262; Exh. R-32.) To operate the 

Slitter mill, a roll of material starts at a cardboard core and is fed underneath a small roller called 

a counter, then over the steel roller at the top of the mill. (Tr. 278.) The bar above the steel roller

holds knife blades in place, which can be spaced and removed depending on a specific job’s 

requirements. (Tr. 278; Exh. C-2 at 7.) After the blades cut the fabric, and depending upon the job, 

a similar roll on the other side of the Slitter mill gathers the cut material on the uptake roll. (Tr. 

278-79.) 

On the rare occasion when the blades stopped cutting correctly (i.e., not deep enough to 

cut through the fabric) or became misaligned, employees, prior to the accident, would sometimes 

adjust them while the Slitter mill was still operating. (Tr. 134-35, 137-38, 141, 240, 247; Exh. 2 at 

3.) Employees also adjusted the rolls of material by hitting them with tubes while the Slitter mill 

was operating. (Tr. 137-38, 144-45, 159, 252.) Although the Slitter mill could be turned off to make 

adjustments, by doing so, “the rolls would lose alignment” making it “harder to do the job.” (Tr. 

142.) Following the accident, employees do not adjust the blades while the Slitter mill is operating. 

(Tr. 229, 247-48.) Red buttons located on both the front and the back of the Slitter mill allow 

employees to shut it off, either during an emergency or normal operations. (Exhs. R-2, R-5, C-2 at 

7; Tr. 280.)

On December 18, 2020, Denaka president Richard Balka directed employees S.H. and 

M.L. to complete a final product run after they had completed inventory. (Tr. 133.) M.L. mixed 

the rubber and S.H. cut it into 4-inch strips on the Slitter mill. (Tr. 133; Exh. C-2 at 3.) S.H., who 

was standing in front of the mill to operate it, noticed one of the Slitter’s blades was not correctly 

cutting rubber. (Tr. 133-34.) He stepped closer to the mill to reach up with his right hand to tap the 

top of the blade to put it into place. 4 (Tr. 134; Exh. C-2 at 3.) As he was doing so, he lost his 

balance and his left shirt sleeve “got stuck in the roll,”5 which was collecting the cut material and 

is approximately 28 inches off the floor. (Tr. 134; Exh. C-2 at 3.) S.H. was unable to extract his 

3 The Slitter mill was also referred to as a “splitter rewind machine” and “duck cutter” at trial. (Tr. 43, 226.)

4 It is unclear from the record what S.H. was using to tap down the blade at the time of accident, but he testified he 

would use “a tube, similar like a tube” to tap the blades. (Tr. 144.) The “Slitter roll,” where the material is cut, is 

approximately 20 inches above the rotating spool. (Exh. C-2 at 3, 7.) 

5 The roll referred to here is the also called the rotating spool or rotating shaft, which gathers material after it is cut by 

the blades. 
5

arm from the rotating spool, which eventually pulled his arm off. (Exh. C-2 at 3.) 

M.L. did not see the accident, but when he came back to the Slitter, he saw S.H. on the 

ground under the mill with his left arm severed.6 (Tr. 244, 282; Exh. C-2 at 7-8.) S.H.’s arm and 

hand were found lodged in the roll of product, which had to be cut away to remove them. (Exh. C2 at 7.) Denaka employee S.F. alerted Balka of the accident and then called 911. (Tr. 281-82.) 

While S.F. waited for the ambulance, M.L. and Balka attended to S.H., covering him up with a 

blanket and then assisting the emergency medical technicians. (Tr. 282.) M.L. and Denaka 

employee P.R. then retrieved trash bags and Balka retrieved bleach. (Tr. 282.) They used rags and 

bleach to clean up the accident area and disposed of the rags, S.H.’s clothing, and their nitrile 

gloves into a trash bag for appropriate disposal. (Tr. 283.) Denaka Controller Stacey Hepner 

notified OSHA’s Marlton, New Jersey, office and the company’s worker’s compensation carrier 

later that day. (Tr. 207.) 

Denaka, through third-party Capital Health, had trained some employees on bloodborne 

pathogens, as well as first aid and CPR, and it had used American Heart Association student 

workbooks as part of the training program. (Tr. 87, 94, 117, 160; Exhs. C-5 (first aid), C-8 at 1-2, 

4 (pathogens).) Denaka also had trained employees on first aid and CPR in 2017, which discussed 

the use of PPE, handwashing, and notification procedures in the event of an accident, however this 

training was not site specific. (Exh. C-4 at 3.) Emails sent by Hepner to OSHA provide the 

company’s designated first aid responders included, among others, Balka and M.L. (Exhs. C-3 at 

6, C-9 at 4; Tr. 210-11.) A designated first aid responder is “[s]omebody who would respond in the 

event of first aid or cleanup of blood from equipment.” (Tr. 91.) However, Balka testified at trial 

Denaka did not have a designated team or group of employees who would be expected to clean up 

blood. (Tr. 302-03.) Denaka also did not offer the Hepatitis B vaccination to employees who had 

completed bloodborne pathogen training or to its designated first aid responders before the 

accident and did not have declination forms on file.7

 (Tr. 47-48; Exhs. C-3 at 4, 7, 9-11, C-9 at 4.) 

Following the 2020 accident, it offered the Hepatitis B vaccine to all three employees involved in 

6 The OSHA violation worksheet provides another Denaka employee eventually stopped the mill, but it does not 

indicate exactly how it was stopped. (Exh. C-2 at 3.) The worksheet describes the main operational switch as being 

approximately 13 inches from the rotating spool or bar. (Exh. C-2 at 3, 7.) 

7 Hepner did not name P.R., among other employees, as a designated first responder in an e-mail to CSHO Townsend 

during the investigation. (Exh. C-9 at 4.) However, she attached an American Heart Association “First Aid, CPR, 

AED” certification card issued to P.R. in 2017 for a training conducted by a third-party Capital Health. (Exh. C-3 at 

10.) Balka testified that the first aid and bloodborne pathogen trainings were offered to all employees. (Tr. 302.) 
6

the cleanup. (Tr. 283.) P.R. and Balka signed waivers declining the shots the Monday following 

the Friday accident, and Hepner called the clinic to arrange the vaccination for M.L., who received 

his first dose on December 23, 2020, and eventually completed his series. (Tr. 208, 283; Exh. C-3 

at 2; Exh. R-30.) 

Regarding Denaka’s bloodborne pathogen program, Hepner provided to OSHA in an email 

following the accident, the company “do[es] not have a written program for Bloodborne 

pathogens.” (Exh. C-8 at 3.) Balka also testified the company had no formal pathogen plan or 

policy prior to 2020. (Tr. 306-07.) However, the company had previously provided OSHA with a 

bloodborne pathogens policy, which contained portions of a National Safety Council workbook, 

as proof of abatement following a 2016 inspection and investigation. (Exhs. C-7 (Denaka), C-6 

(NSC); Tr. 64-65, 307.) 

2020 Accident Inspection and Safety History 

CSHO Townsend conducted a workplace inspection on Monday, December 21, 2020, and 

continued her investigation over the next several months.8 (Tr. 95.) As part of her investigation, 

CSHO Townsend received information on machine guarding, vaccinations, training, and the 

company’s bloodborne pathogens program from Hepner. She also reviewed Denaka’s inspection 

and violation history, which included citations in 2010, 2012, and 2016. CSHO Townsend 

consulted her supervisor, Assistant Area Director Marie Lord, who had inspected the Denaka 

facility following the 2016 accident. CSHO Townsend also reviewed the case file regarding the 

2016 accident and resulting citation. (Tr. 95-97, 167-68.) The 2016 accident involved a Denaka 

employee’s hand being pulled into the nip point while he was feeding raw material onto the 

Chrome mill’s steel rollers. Home Rubber Co., LP, No. 17-0138, 2021 WL 3929735, at *1 

(OSHRC Aug. 26, 2021). Although he freed his hand by reversing the rollers, four of his fingers 

were later surgically amputated at a hospital. Id. Following the 2016 accident, two Denaka 

employees used rags and bleach to clean up blood from the area.9 Id.

8 CSHO Townsend joined OSHA in 2011 and estimated she had conducted a few hundred inspections during her time 

with the agency. (Tr. 36.)

9 Among other things, OSHA cited Denaka for serious violations of § 1910.212(a)(1) (for failing to guard the rotating 

arm on another machine, called the Kobe mill), § 1910.1030(f)(2)(i) (for failing to timely make the Hepatitis B 

vaccination available to employees), and § 1910.1030(c)(1)(i) (for failing to develop and implement a written 

bloodborne pathogen exposure control plan). (Exhs. C-2 at 11-13, C-3 at 15-16, C-4 at 8-10.) OSHA also cited Denaka 

for failing to guard the point of operation on the Chrome mill, the Kobe mill, Mill One, and Mill Three, in violation 

of § 1910.212(a)(3)(ii), which is another provision of the machine guarding standard. (Exh. C-2 at 16-19.) The machine 

guarding violations and bloodborne pathogen exposure control plan violations were affirmed, and on review the 
7

AAD Lord had observed the Slitter mill in 2016, however she did not ask Denaka to operate 

the mill and did not see it actually operating.10 (Tr. 176-77, 294-95.) AAD Lord also reviewed a 

1999 audit inspection report for Denaka’s facility, which Balka’s former partner had obtained 

through a voluntary OSHA audit program. (Exh. C-11; Tr. 274-75.) Among other things, the thirdparty consultants conducting the audit observed that “Denaka’s procedures for machinery guarding 

appear to be inconsistently implemented” because “guards are in place on some fixed equipment 

but missing on others.” (Exh. C-11 at 8.) The consultants recommended Denaka develop “a formal 

program for machinery guarding” based upon the “requirements in 29 CFR Subpart O, 1910.211 

through 1910.219.” (Id.) According to Balka, Denaka added some guarding to machines 

throughout the facility following the audit. (Tr. 276.) 

OSHA also inspected Denaka’s facility in 2010 and 2012 and issued citations which alleged 

machine guarding violations. (Exh. R-36.) In 2010, Denaka and OSHA settled a serious citation 

alleging violations of § 1910.219(e)(3)(i) (requiring employers to enclose vertical and inclined 

belts with a conforming guard), § 1910.219(f)(1) (requiring employers to guard gears according to 

a method set forth in the standard), and § 1910.303(g)(1)(ii) (requiring employers to guard 

normally enclosed live electrical parts that are exposed for inspection or servicing, if in a 

passageway or general open space) for a total penalty of $1,463. (Id. at 1.) In 2012, they settled a 

serious citation alleging violations of § 1910.212(a)(1) (requiring machine guarding to protect the 

operator and employees from hazards) and § 1910.303(g)(1) (requiring employers to provide and 

maintain sufficient access and working space for safe operation and maintenance of electric 

Commission affirmed the Hepatitis B vaccination violation. Home Rubber, 2021 WL 3929735, at *1, 11-12. 

These mills are described in the 2016 violation worksheet. (Exh. C-2 at 18.) The Chrome mill, according to worksheet, 

“is operated to make a specialty rubber product. Raw rubber is fed into the mill and then additional rubber and or 

powdered chemicals are added to the mix. All ingredients have to be hand fed into the mill due to the nature of the 

material that is produced.” (Id.) The Chrome mill had no guarding features at the time of the 2016 incident. (Id.) 

To make products containing carbon black on Mill Three, an employee places a block of rubber “onto the cylinders 

and [it is] pulled into the machine creating a smooth sheet.” (Id.) The employee adds “[p]owdered chemicals and oils 

. . . to the rubber using a shovel as the cylinders on the machine are spinning. The sheet is cut several times by hand, 

pulled out of the cylinders and then put back in. Finished sheets of rubber are removed by the same cutting process.”

(Id.) Mill One is used in the same manner but without the carbon black. (Id.) 

The Kobe mill, according to the worksheet, “is also known as the warm up mill. Finished sheets of rubber are placed 

into the cylinders to warm up the rubber prior to feeding it into the calendar machine. Employees also hand cut this 

rubber, pull it out of the cylinders and then feed it back into the cylinders.” (Id.) 

10 As a result of her observations, OSHA also cited Denaka for a torn strain relief on an electrical cable that attaches 

to control panel for the Slitter mill, as well as torn strain reliefs on two other mills, in violation of § 1910.305(g)(2)(iii). 

Home Rubber, 2021 WL 3929735, at *54 (ALJ). The judge affirmed this serious citation item and penalty of $3,742, 

and the Commission did not consider this citation item on review. Id.
8

equipment) for a total penalty of $3,108. (Id. at 2.) Denaka also settled without penalty an otherthan-serious citation alleging a violation of § 1910.146(c)(2), which requires employers to inform 

employees of the existence, location, and danger posed by permit spaces. (Id. at 1.) At trial, Balka 

testified that the 2012 inspection and citation did not involve the mills involved in the 2016 citation 

or the Slitter in the current citation. (Tr. 273.) 

OSHA primarily based its decision to issue a willful citation in the instant matter on these 

previous citations and the factual circumstances surrounding the 2016 accident. (Tr. 97, 192-93.) 

Credibility and Conflicting Testimony

The Court credits the testimony of CSHO Townsend. Her recollection of events and 

conversations that occurred during her investigation was consistent with her investigation 

summary, OSHA violation worksheets, as well as email exchanges with Denaka employees. (Exhs. 

C-1, C-2, C-3, C-4, C-5, C-8, C-9.) Similarly, the Court credits the testimony of AAD Lord 

regarding her involvement in the 2020 accident inspection and citation. 

Slitter Machine Operation 

Regarding the machine guarding citation, S.H. testified he did not often tap the blades to 

adjust them while the Slitter mill was running. (Tr. 141.) In his deposition, he testified either Debra 

Steele, who was the production manager at the time of the accident, or Balka saw him hitting the 

blade while the mill was moving. (Tr. 136.) S.H. also testified he observed M.L. hitting the blade 

while the mill was operating. (Tr. 137.) M.L. testified he had observed employees adjusting the 

blades with a mallet while the mill was operating. (Tr. 240.) He also testified he had tapped down 

the blades while the mill was running. (Tr. 247.) He later contradicted himself and said he had only 

seen others tap down the blades while the mill was running. (Tr. 249-50.) M.L. testified the Slitter 

mill must now be turned off to adjust the blades. (Tr. 241, 247-48.) However, at his deposition, he 

stated the blades could not be adjusted while the mill is moving. (Tr. 242-43.) Denaka employee 

W.C., who began working for the company in February 2020, testified he did not adjust blades at 

the top of the Slitter mill while it was operating. (Tr. 229-30.) 

Steele, who left the company in April 2022, testified she observed employees operating the 

Slitter mill but did not see them adjust blades while the mill was operating. (Tr. 159.) She observed 

operators occasionally use a mallet or similar tool to realign material coming through the roll. (Tr. 

159.) Balka testified he had never seen or been informed of employees adjusting the blades while 

the Slitter mill was operating. (Tr. 285-86.) 
9

Based upon the above testimony, the Court credits the injured employee S.H.’s testimony 

he adjusted the blades while the Slitter mill was operating and observed others doing so. That 

managers may not have observed Slitter mill operators adjusting the blades while the mill was 

operating, and that a current employee does not make these adjustments, do not establish 

employees did not previously engage in this behavior, including at the time of the 2020 accident. 

Testimony from employees and managers establishes the Slitter mill was rarely used, or at least 

used less frequently than other mills. (Tr. 136, 141, 224.) The Court concludes employees, prior to 

the 2020 accident, occasionally adjusted and tapped down the Slitter mill’s blades while it was 

operating. 

Vaccine Testimony

Turning to the vaccine citation, Lord testified that during the 2016 closing conference she, 

Balka, and Hepner “discussed provision of the Hepatitis B vaccination to any employees who were 

designated as either first aid responders or to clean up blood or bodily fluids after an exposure 

event.” (Tr. 173.) In her testimony during the Commission proceeding for the 2016 citations, she 

said the vaccine violation “was issued because a Hepatitis B vaccination was not provided, was 

not offered and/or provided to employees required to clean up blood.” (Tr. 187.) Hepner testified, 

based upon her participation in the 2016 opening and closing conferences and communications 

with OSHA, that it was her understanding the vaccine “was [to be offered] at the time of an 

accident.” (Tr. 206, 209.) Balka similarly testified it was not his understanding from the 2016 

citation and conferences the vaccine should be offered to someone who had been trained in 

bloodborne pathogens or designated a first aid responder. (Tr. 301-02.) 

Based upon this conflicting testimony and the fact these conferences took place six years 

prior to the trial in the current case, the Court declines to make a finding on whether these 

discussions were limited to offering the vaccine following a potential exposure event or included 

the requirement to offer the vaccine within ten days to employees who had received bloodborne 

pathogen training. As discussed below, the Court finds although OSHA’s basis for the previous 

citation was Denaka’s failure to offer the vaccine to employees within ten days of cleaning up after 

the May 6, 2016, accident, OSHA made no affirmative representations to the company that the 

other part of the standard’s provision, directing employers to offer the vaccine with ten days of 

initial assignment, did not apply.
10

Bloodborne Pathogens Response and Training 

Steele testified that an outside company trained a group of Denaka employees on first aid 

and bloodborne pathogens exposure. (Tr. 160.) W.C. testified he had safety, CPR, first aid, 

bloodborne pathogens, mill rescue, and forklift training as a Denaka employee and that the CPR 

and first aid training had been in January 2021 or 2022. (Tr. 230-31.) M.L. testified he had received 

first aid training prior to the 2020 accident, which was meant to allow him to respond to accidents 

involving blood at the facility. (Tr. 252-53.) Balka testified Denaka “would not let someone who 

was not trained clean bodily fluids,” but the company in 2016 had “no designated team [and] no 

first responders.” (Tr. 302.) Similarly, he testified the company did not have a designated team in 

2020, although it “offered the trainings that we do to every employee in the factory and in the 

office without an expectation that they're going to need to use it for any purpose.” (Tr. 303.) Balka 

also testified Denaka offered first aid, CPR, and bloodborne pathogens trainings and insurance 

company resources to employees following the 2016 accident, but the company did not have a 

formal, written bloodborne pathogen control and incident response plan at the time of the 2020 

accident. (Tr. 306-07.) Hepner testified it was her understanding designated first aid responders 

are employees trained in first aid, not necessarily designated to respond to an incident. (Tr. 210-

211; Exh. C-9 at 4.) She testified Denaka would not call or alert a specific group of employees in 

the event of an incident involving blood, such as the one at issue in 2020. (Tr. 211.) She did not 

recall any discussion with OSHA as to the meaning of the term “designated first aid responder” 

and did not contact CSHO Townsend about the meaning of the term designated first responder. 

(Tr. 211, 215.) In response to inquiries regarding designated first aid responders during the 

investigation, Hepner sent a list of employees and American Heart Association CPR/first aid cards 

for M.L., Balka, and P.R. to CSHO Townsend. (Exhs. C-9 at 4; C-3 at 7, 9-11.) CSHO Townsend 

confidently testified Hepner sent the names and cards for employees trained in first aid and CPR 

and it established these employees were in fact designated first aid responders within the meaning 

of the standard. (Tr. 48-50.) 

The Court finds the above testimony credible. It establishes Denaka trained its employees 

in CPR and first aid, and it had designated first aid responders either expected or directed to clean 

up blood and bodily fluids at the facility. 

The Citation

Following the inspection and investigation, OSHA cited Denaka for three willful violations 
11

of Section 5(a)(2) of the Occupational Safety and Health Act of 1970, and the standards thereunder 

found at 29 C.F.R. § 1910.212(a)(1), 29 C.F.R. § 1910.1030(f)(2)(i), and 29 C.F.R. § 

1910.1030(g)(2)(i). 

ANALYSIS

To prove a violation of section 5(a)(2) of the Act, the Secretary must establish “by a 

preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply 

with the cited standard, (3) employees had access to the violative condition, and (4) the cited 

employer either knew or could have known of the condition with the exercise of reasonable 

diligence.” Astra Pharm. Prods., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in pertinent 

part, 681 F.2d 69 (lst Cir. 1982). 

Machine Guarding 

The Secretary alleges in Citation 2, Item 1:

29 C.F.R. § 1910.212(a)(1): Types of guarding. One or more methods of 

machine guarding were not provided to protect the operator and other 

employees in the machine area from hazards such as those created by point 

of operation, ingoing nip points, rotating parts, flying chips and sparks. 

Examples of guarding methods are barrier guards, two-hand tripping 

devices, electronic safety devices, etc.

a) Mill Room: Slitter/rewinder was not provided with a guard to protect the 

operator from being caught in rotating parts. Employees exposed to 

caught-in hazards while adjusting the material on the spools on the takeup bar. Employees stand in front of and when more than one take-up bar 

is used stand in between the rotating take up bars while winding product 

on the spools on or about 12/18/2020. 

b) Mill Room: Slitter/rewinder was not provided with a guard to protect the 

operator from being caught in rotating parts. Employees are exposed to 

caught in hazards while adjusting the depth of the knife blade while the 

machine is running on or about 12/18/2020. 

c) Mill Room: The shaft to the Slitter/rewinder machine was not provided 

with a guard to protect the operator from being caught in the rotating 

shaft while utilizing the on/jog/off buttons on or about 12/18/2020. 

(Am. Compl. VI.) 

Whether the Cited Standard Applies 

Denaka argues the injury did not occur at the Slitter’s “point of operation,” which is defined 

in § 1910.212(a)(3)(i) as “the area on a machine where work is actually being performed upon the 

material being processed,” but rather at the rotating spool which was gathering up the cut material. 
12

(Resp’t Post-Hr’g Br. at 6.) Therefore, according to Denaka, the cited provision of the machine 

guarding standard does not apply. (Id.) The Court finds this argument unpersuasive, as it ignores 

the plain text of the provision. Section 1910.212(a)(1) also requires guarding to protect employees 

from hazards created by “ingoing nip points, rotating parts, fly chips and sparks.” 29 C.F.R. § 

1910.212(a)(1). Rotating parts are enumerated in the machine guarding requirements, and the 

Secretary alleges the rotating shaft was unguarded. Therefore, the Court finds that the cited 

standard applies. See S & G Packaging Co., 19 BNA OSHC 1503 (No. 98-1107, 2001) (machine 

guarding violation affirmed where employee suffered injuries by contacting unguarded rotating 

drive rollers). 

Whether Denaka Violated the Standard 

The cited standard, § 1910.212(a)(1), is a performance standard, “which means ‘it states 

the result required . . . , rather than specifying that a particular type of guard must be used.’ ”

Aerospace Testing All., No. 16-1167, 2020 WL 5815499, at *3 (OSHRC April 15, 2020) (quoting 

Diebold, Inc., 3 BNA OSHC 1897, 1900 (No. 6767, 1976) (consolidated), rev'd on other grounds, 

585 F.2d 1327 (6th Cir. 1978)). “Performance standards ‘require an employer to identify the 

hazards peculiar to its own workplace and determine the steps necessary to abate them.’ ”

Aerospace Testing, 2020 WL 5815499, at *3 (quoting Thomas Indus. Coatings, Inc., 21 BNA 

OSHC 2283, 2287 (No. 97-1073, 2007)). Here, it is undisputed Denaka did not provide any 

guarding for the Slitter mill’s rotating shaft. (Exhs. C-2 at 3, 7, R-2; Tr. 277.) The record establishes 

the rotating shaft posed an amputation hazard, which required Denaka to guard the Slitter mill 

pursuant to § 1910.212(a)(1). See S & G Packaging, 19 BNA OSHC 1503 at *3 (existence of a 

hazard established based upon employee injuries and record evidence that machine rollers were 

not guarded). The Court finds Denaka did not comply with the standard. 

Whether Employees Had Access to the Violative Condition 

To establish access, “the Secretary must show either that Respondent's employees were 

actually exposed to the violative condition or that it is ‘reasonably predictable by operational 

necessity or otherwise (including inadvertence), that employees have been, are, or will be in the 

zone of danger.’ ” S & G Packaging, 19 BNA OSHC 1503, at *3 (quoting Fabricated Metal Prods., 

18 BNA OSHC 1072, 1074, (No. 93-1853, 1997)). Here, S.H.’s injury establishes actual exposure 

to the violative condition set forth in paragraph (b) of Citation 2, Item 1, which alleges employee 

exposure to caught in hazards while adjusting knife blades. See S & G Packaging, 19 BNA OSHC 
13

1503, at *3 (Employee’s “injuries establish actual exposure to the unguarded drive rollers.”); see 

also Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995) (employee’s fall 

through a skylight established actual exposure to a fall hazard), aff'd without published opinion, 

79 F.3d 1146 (5th Cir. 1996). 

The Court also finds that the Secretary proved access to the violative condition was 

reasonably predictable. Commission precedent provides the zone of danger “is . . . the ‘area 

surrounding the violative condition that presents the danger to employees the standard is intended 

to prevent.’ ” Dover High Performance Plastics, No. 14-1268, 2020 WL 5880242, at *2 (OSHRC 

Sept. 25, 2020) (quoting RGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)). The 

relevant inquiry involves assessments of the configuration of the machine and how employees 

position themselves near the machine. See ConAgra Flour Milling Co., 16 BNA OSHC 1137, 

1149-50 (No. 88-1250, 1993) (finding exposure where employees worked 1 to 1.5 feet away from 

unguarded parts and neither the operation nor the configuration of the machine would prevent the 

employees from approaching them), rev'd in part on other grounds, 25 F.3d 653 (8th Cir. 1994); 

Mosser Constr. Co., 15 BNA OSHC 1408, 1411, (No. 89-1027, 1991). 

Here, the record establishes it was reasonably predictable Denaka employees, either 

through their assignments or inadvertence, would be in the area surrounding the violative 

condition—the unguarded rotating shaft— that presents danger to employees. Although Denaka 

employees did not have an operational necessity to contact the unguarded rotating spool while 

adjusting the blades, this action brought their hands, arms, and upper bodies within the zone of 

danger, exposing them to inadvertent contact with the spool. See S & G Packaging, 19 BNA OSHC 

1503, at *3 (machine operators had no operational necessity for contacting rollers, but checking 

paste application process put their heads and upper bodies within the zone of danger); Fabricated 

Metal Prods., 18 BNA OSHC 1072, at *3 n.7 (No. 93-1853) (“Our inquiry then is whether the 

employees’ proximity to the machines makes it reasonably predictable that they will enter these 

zones of danger by slipping or falling.”). 

The Slitter’s roll was at the top, tip of the triangular-shaped machine, 20 inches from the 

rotating spool, which is located lower on the outside of the triangle. (Exh. C-2 at 3, 7-8.) The blades 

at the time of the accident were spaced out from one side of the Slitter roll to the other to cut fourinch strips of nylon fabric. (Id. at 3, 7.) An employee attempting to adjust any of these blades would 

be near the unguarded rotating spool, given the configuration of the machine. See RGM Constr., 
14

17 BNA OSHC at 1234 (the zone of danger is “that area surrounding the violative condition that 

presents the danger to employees which the standard is intended to prevent”). 

As to the Secretary’s allegations in paragraphs (a) and (c)—exposure to the rotating shaft 

while adjusting spools on the take up bar and exposure while using the on/jog/off buttons—the 

record supports an exposure/access finding for each. Employees performed both tasks while the 

Slitter mill was running. (Tr. 137-38, 142-43, 145, 148 (material), 289 (jogger); Exh. C-2 at 4.)

And both tasks required employees to enter the zone of danger. First, employees adjusting the 

spools themselves would place their hands directly into the zone of danger to adjust materials on 

the rotating shafts.11 (Tr. 137-38, 142-43, 145, 148, 248, 252; Exh. C-2 at 4.) And second, 

operating the on/jog/off buttons required employees to be roughly 13 inches away from the 

unguarded rotating spool, which is nearer than when they adjusted the blades, placing them in the 

zone of danger. (Exh. C-2 at 3, 7-9.) For these reasons, the Secretary has established access to the 

unguarded rotating shaft. 

Whether Denaka Had Knowledge of the Violative Condition

To establish the knowledge element, “the Secretary must prove that the employer knew or, 

with the exercise of reasonable diligence, should have known of the conditions constituting the 

violation.” Cent. Fla. Equip. Rentals, Inc., 25 BNA OSHC 2147, 2155 (No. 08-1656, 2016) (citing 

Jacobs Field Servs. N. Am., 25 BNA OSHC 1216, 1218 (No. 10-2659, 2015)). “The actual or 

constructive knowledge of the employer’s foreman or supervisor can be imputed to the employer.”

Jersey Steel Erectors, 16 BNA OSHC 16 BNA OSHC 1162, at *2 (No. 90-1307, 1993), aff'd, 19 

F.3d 643 (3d Cir. 1994). Here, Denaka offers several unpersuasive arguments as to why it did not 

have knowledge of the violative condition. Denaka asserts it did not know S.H. was adjusting the 

blades while the Slitter was operating, because employees infrequently used the Slitter mill. 

(Resp’t Post-Hr’g Br. at 7-9.) It also asserts it did not have knowledge of the violative condition 

because the Secretary did not indicate during previous investigations the Slitter lacked machine 

guarding. (Id. at 10.) 

These arguments fail. The Secretary need not establish Denaka management knew S.H. 

adjusted the blades while the Slitter was operating. The Secretary must only establish “that the 

employer was aware of the physical conditions constituting the violation.” S & G Packaging, 19 

11 It is unclear from the record whether the material was at times being adjusted on the roll before it was cut or after it 

was cut. 
15

BNA OSHC 1503, at *4. Here, the physical condition is the lack of guarding on the Slitter mill’s 

rotating shaft, and the record establishes Denaka knew of this violative condition. Steele testified 

she saw employees operating the Slitter mill.12 (Tr. 159.) Balka testified the mill had not been 

modified since he purchased the company nearly 25 years before the accident. (Tr. 277.) Moreover, 

CSHO Townsend’s investigation notes provide Balka told her he had observed S.H. operating the 

mill. (Exh. C-2 at 4.) Therefore, Balka would have observed the Slitter’s lack of guarding. See S 

& G Packaging, 19 BNA OSHC 1503, at *4 (actual knowledge established where compliance 

officer testified the plant manager and safety manager told her they were aware of unguarded 

condition). CSHO Townsend’s notes and photographs provide Balka also demonstrated how the 

unguarded Slitter mill works.13 (Exh. C-2 at 4, 8; Tr. 44-45.) 

The Commission also has found an employer is aware of the physical conditions 

constituting the violation when the conditions are in the open, plainly visible to anyone walking 

by, and supported by photographic evidence in the record. See S & G Packaging, 19 BNA OSHC 

1503, at *4. Here, photographs in the record establish the Slitter mill was in plain view, such that 

company management was at least able to observe it was not guarded. (Exhs. C-2 at 3, 7-9, R-2.) 

Denaka also posits a fair notice argument by alleging it did not have knowledge of the 

violative condition since the Secretary did not indicate during previous inspections and 

investigations the Slitter lacked guarding or required it. (Resp’t Br. at 10.) The Court finds this 

argument unpersuasive. It is well-settled that “the mere fact of prior inspections does not give rise 

to an inference that OSHA made an earlier decision that there was no hazard, and does not preclude 

the Secretary from pursuing a later citation.” Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC 

1218, at *7 (No. 88-821, 1991). Furthermore, the record does not support a finding OSHA 

12 Townsend also testified that Steele said she had observed employees operating the Slitter mill. (Tr. 45.) Her 

investigation notes also state that Steele said she observed S.H. operating the Slitter mill. (Exh. C-2 at 4.)

13 Even assuming the violative condition is related to employees adjusting the blades while the Slitter mill was running 

and management did not observe this practice, management could have discovered the practice with the exercise of 

reasonable diligence. Employees testified they learned to operate the Slitter from more senior employees and 

observation, rather than any formal training and there was no evidence in the record of a work rule forbidding this 

practice. S.H testified he learned to operate the Slitter mill by helping other people, including Walter, who managed 

the mill room, and Jose, another employee who had worked on the mill. (Tr. 132-33.) S.H. also said he did not receive 

formal training from HR on how to operate the mill. (Tr. 133.) Denaka management did not train its employees to 

correctly use the Slitter, did not take steps to discover how employees used the mill, and did not discipline employees 

when they used it incorrectly. See Precision Concrete Constr., 19 BNA OSHC 1404, 1407 (No. 99-0707, 2001) (To 

determine whether an employer exercised reasonable diligence, the Commission considers, among other things an 

“employer’s obligation to have adequate work rules and training programs, to adequately supervise employees. . . .”). 
16

affirmatively represented to Denaka the Slitter, which was not involved in the 2016 amputation 

accident, complied with machine guarding requirements. Compare S & G Packaging, 19 BNA 

OSHC 1503, at *4 n.12 (“[T]here is no evidence that OSHA made any representations that 

deprived Respondent of fair notice of the standard’s requirements.”) and Columbian Art Works, 

Inc., 10 BNA OSHC 1132, at *1 (No. 78–0029, 1981) (record did not establish compliance officer 

informed employer it was in compliance with machine guarding standard), with Miami Indus., Inc., 

15 BNA OSHC 1258, 1264 (No. 88-671, 1991) (OSHA’s affirmative representations that agency 

considered the employer in compliance with guarding standard deprived employer of fair notice), 

aff’d in relevant part and set aside in part without published opinion, 983 F.2d 1067 (6th Cir. 

1992). Denaka’s “ ‘continuing obligation’ ” to comply with the Act does not absolve it of its failure 

to provide machine guarding on the Slitter. Seibel Modern Mfg., 15 BNA OSHC 1218, at *7 

(quoting Lukens Steel Co., 10 BNA OSHC 1115, at *11 (No. 76–1053, 1981)). 

The Court finds the Secretary has established all elements of her burden of proof for 

Citation 2, Item 1.

Hepatitis B Vaccination

The Secretary alleges in Citation 2, Item 2:

29 C.F.R. § 1910.1030(f)(2)(i): The Hepatitis B vaccination was not made 

available within 10 working days of initial assignment to all employee(s) 

with occupational exposure. 

a) Facility: The employer did not offer the Hepatitis B vaccine series to 

designated first aid responders and employees who conducted cleanup 

operations after an incident involving blood or other potentially 

infections [sic] materials, on or about 12/18/2020. 

(Citation at 8.) 

Whether the Cited Standard Applies 

The standard generally requires employers to offer the Hepatitis B vaccine to employees 

within 10 working days of initial assignment, such as after they have received required bloodborne 

pathogen training, and to all employees who have occupational exposure, such as after a workplace 

incident. 29 C.F.R. § 1910.1030(f)(2)(1). It defines occupational exposure as “reasonably 

anticipated skin, eye, mucous membrane, or parenteral contact with blood or other potentially 

infectious materials that may result from the performance.” 29 C.F.R. § 1910.1030(b). Here, the 

Secretary asserts the standard applies to M.L., among others, because Denaka trained and 

designated him as a first aid responder in 2017, and he responded to and cleaned up blood after 
17

the 2020 amputation accident. (Sec’y Post-Hr’g Br. at 15.) Denaka argues that although it trained 

some employees in first aid and bloodborne pathogens, it did not have any designated first aid 

responders or a set group of employees expected to respond to an incident. (Resp’t Post-Hr’g Br. 

at 13.) 

The Court is not persuaded. The 2016 accident, and the nature of the work performed with 

machines and knives, demonstrate Denaka could reasonably anticipate designated first aid 

responders or employees otherwise trained to respond would, during an incident response, have 

occupational exposure to blood resulting from performance of their first aid and cleanup duties. 

Cf. Am. Recycling & Mfg. Co. v. Sec'y of Labor, 676 F. App'x 65, 72 (2d Cir. 2017) (unpublished) 

(rejecting violation where employer could not reasonably anticipate contact with blood during their 

work duties). That Denaka offered such training also reinforces a finding the company has at a 

minimum employees expected to respond in the event of an incident. The standard, § 

1910.1030(f)(2)(i), applies to the cited condition. 

Whether Denaka Violated the Standard 

The Secretary argues Denaka violated the standard due to Denaka’s failure to offer M.L. 

the vaccine within 10 working days of his initial assignment as a designated first aid responder. 

(Sec’y Post-Hr’g Br. at 15.) Instead, Denaka offered the vaccine three days after the 2020 accident 

to which M.L. responded. (Id.) Denaka, which was cited by OSHA for a violation of the same 

standard following the 2016 accident and investigation, argues Balka’s understanding was OSHA 

issued the previous citation on the basis the company did not offer the vaccine within ten days of 

the 2016 exposure event. (Resp’t Post-Hr’g Br. at 11.) It asserts Balka did not understand the 

standard required Denaka to offer the vaccine to employees once they were trained to respond to 

incidents involving occupational exposure to bloodborne pathogens. (Id. at 11-12.) 

The Court is not persuaded by Denaka’s fair notice argument. Denaka, again, does not point 

to any affirmative representations by OSHA that the first part of the standard’s provision regarding 

offering the vaccine after initial assignment does not apply. See S & G Packaging, 19 BNA OSHC 

1503, at *4 n.12 (“[T]here is no evidence that OSHA made any representations that deprived 

Respondent of fair notice of the standard’s requirements.”). Denaka merely asserts Balka’s 

understanding that OSHA’s previous citation was based upon the company’s failure to offer the 

vaccine within ten days of occupational exposure resulting from the 2016 accident. (Resp’t PostHr’g Br. at 14 (“To be sure, in 2016, OSHA cited Denaka for not offering the vaccine at the time 
18

of cleanup and exposure to potentially contaminated materials.”); Tr. 206 (Hepner), 299, 301 

(Balka).) It appears, from the evidence adduced at trial, this was OSHA’s basis for the previous 

citation, as Denaka had not designated any first aid responders at the time of the 2016 accident. 

(Exh. C-3 at 15-16; Tr. 187, 194 (employees were assigned on the date of the May 6 accident).)

However, Denaka failed to present any evidence OSHA represented it did not need to offer the 

vaccine to employees after they had received required bloodborne pathogen training, and nothing 

precludes OSHA from issuing a citation based upon Denaka’s failure to offer the vaccine after 

initial assignment.

Implicit in Denaka’s argument OSHA did not previously inform the company of its 

obligation to offer the vaccine to employees within ten days of initial assignment (training), is a 

claim the standard’s provision is unclear or it lacked notice from the provision’s text. Even if 

Denaka had explicitly raised this argument, the Court would reject it. Whether Denaka knew its 

conduct violated the standard, the company was aware of the conditions—its failure to offer the 

vaccine after initial assignment—underlying the violation. See Froedtert Mem. Lutheran Hosp., 

Inc., 20 BNA OSHC 1500, at *11 (No. 97-1839, 2004) (rejecting employer’s argument it lacked 

notice that it was required to comply with vaccination requirement because the “Commission has 

long held that the knowledge required to establish a violation is not directed ‘to the requirements 

of the law, but to the physical conditions which constitute a violation of [the Act].’ ” (quoting Sw. 

Acoustics & Specialty, Inc., 5 BNA OSHC 1091, 1092 (No. 12174, 1977); see also Midwest 

Masonry, Inc., 19 BNA OSHC 1540, 1544 n.6, (No. 00-0322, 2001) (“[w]hether or not employers 

are in fact aware of each OSHA regulation and fully understand it, they are charged with this 

knowledge and are responsible for compliance . . . . [i]t is no defense that they did not understand 

the reasonable interpretation of a regulation”) (internal citations omitted). 

Denaka’s reading of the standard is also contrary to established Commission precedent, as 

well as the interpretation of Commission judges and appeals courts. See Froedtert, 20 BNA OSHC 

1500, at *12 (“The standard . . . requires only that the vaccine be ‘made available’ to exposed 

employees within ten days of initial assignment.”). Recently, a Commission judge found an 

employer failed to comply with the standard when it did not offer employees the Hepatitis B 

vaccine within ten working days of assignment to its injury response team. Wal-Mart Stores E., 

LP, 26 BNA OSHC 1756, at *19 (No. 16-0272, 2017) (ALJ). The Commission denied the 

employer’s petition for review and the U.S. Court of Appeals for the Eighth Circuit affirmed the 
19

judge’s decision. Wal-Mart Stores East, LP v. Acosta, 919 F.3d 1073 (8th Cir. 2019). The Eighth 

Circuit found the judge correctly “relied on testimony from Wal-Mart’s AP manager in charge of 

the SIRT team during the relevant time period, who conceded he failed to offer the vaccine to 

certain SIRT volunteers after they had completed their training.” Id. at 1080. Here, the arguments 

advanced by Denaka, as well as Balka and Hepner’s testimony they were unaware of the need to 

offer the vaccine in the absence of an exposure event, amount to a concession the company 

similarly failed to offer the vaccine to employees after they completed their bloodborne pathogens 

training. 

Whether Employees Had Access to the Violative Condition 

M.L. was a designated first aid responder and, as he testified, Denaka did not offer the 

vaccine to him within ten days of completing his training or at any time before the 2020 amputation 

accident. (Tr. 243-44, 253; Exh. C-3 at 4.) Previous accidents and the nature of work at the facility, 

which involved working with and near machines and knives, made designated first aid responder 

exposure reasonably foreseeable within the meaning of the standard. See Offshore Shipbuilding, 

Inc., 18 BNA OSHC 2169, at *8 (No. 97-257, 2000) (“[D]esignated first aid providers . . . might 

be exposed to bloodborne pathogens in rendering assistance to a fellow employee who had been 

injured . . . . [and g]iven the nature of the work being done . . . an injury that would cause bleeding 

was reasonably foreseeable.”). Although Lord testified employees did not end up having an 

exposure to bloodborne pathogens because they wore gloves while cleaning up after the accident, 

actual exposure is not a prerequisite under the standard for the requirement to offer the vaccine. 

(Tr. 171.) As noted above, the standard also defines occupational exposure as “reasonably 

anticipated . . . contact with blood or other potentially infectious materials that may result from the 

performance.” 29 C.F.R. § 1910.1030(b). The Court therefore finds the Secretary has established 

access to the violative condition. 

Whether Denaka Had Knowledge of the Violative Condition

 To establish knowledge, the Secretary must either establish the employer knew or, with 

the exercise of reasonable diligence, should have known of the physical conditions constituting 

the violation. Cent. Fla. Equip. Rentals, Inc., 25 BNA OSHC at 2155. The Court notes the physical 

condition here is Denaka’s failure to offer employees the vaccine within ten days of completing 

bloodborne pathogen and first aid training, which Denaka does not dispute. Instead, Denaka claims 

it was unaware of the requirement to offer the vaccine after training since OSHA had not raised 
20

this requirement during the previous inspection and citation conferences. (Resp’t Post-Hr’g Br. at 

11-13.) Denaka also argues it did not have designated first aid responders to whom it was required 

to offer the vaccine absent an exposure, because it offers the training to all employees. (Id. at 13-

14.) The Secretary argues Balka assigned M.L. to clean up the area around the Slitter mill following 

the accident, despite knowing Denaka had not offered him the vaccine. (Sec’y Post-Hr’g Br. at 

17.) Further, the Secretary notes Balka and M.L. had both received first aid and bloodborne 

pathogen training in 2017, according to Steele, who, along with Hepner, also confirmed M.L. was 

a designated first aid responder. (Id.) 

The evidence adduced at trial establishes actual knowledge. Denaka did not offer M.L. and 

other first aid responders the vaccine within ten days of completing their training and prior to the 

2020 accident. Balka testified that after the 2020 accident Denaka “offer[ed] the vaccination 

immediately [to M.L., P.R., and me] because we just assigned these people to clean up blood.” (Tr. 

305). Similarly, Hepner, who arranged the vaccination appointments and waivers following the 

accident, testified it was her “understanding . . . that they were to be offered [the vaccine series] at 

the time of the incident.” (Tr. 209; 245.) Because Balka is president of Denaka and Hepner is a 

management employee, their knowledge that Denaka had not offered the vaccine to M.L. following 

his training is imputable to the company. Therefore, Denaka, despite its misunderstanding of the 

standard’s command, knew of the violative condition. 

The Court finds the Secretary has established all elements of her burden of proof for 

Citation 2, Item 2.

Training Violation

The Secretary alleges:

Citation 2, Item 3

29 C.F.R. § 1910.1030(g)(2)(i): The employer did not ensure that each 

employee with occupational exposure participated in a training program. 

a) Facility: The employer did not provide training on the minimum 

required elements of 29 C.F.R. § 1910.1030(g)(2)(vii)(a) [sic] through 

(g)(2)(vii)(N) for employees who were assigned to conduct cleanup 

operations after an incident involving blood or other potentially 

infections [sic] materials, on or about 12/18/2020. 

(Citation at 9.) The cited standard provides “[t]he employer shall train each employee with 

occupational exposure in accordance with the requirements of this section. Such training must be 
21

provided at no cost to the employee and during working hours. The employer shall institute a 

training program and ensure employee participation in the program.” 29 C.F.R. § 

1910.1030(g)(2)(i). Among other things, the training must contain the text of the standard, an 

explanation of the employer’s control plan and where the employee can obtain a written copy of 

it, an explanation of methods to recognize tasks that involve exposure, vaccine information, 

reporting requirements following the exposure incident, and procedures for responding to an 

exposure incident. See 29 C.F.R. §§ 1910.1030(g)(2)(vii)(a)-(g)(2)(vii)(N). 

Whether the Standard Applies 

The Secretary argues the standard applies to Denaka’s designated first aid responders, as 

well as other employees with occupational exposure. (Sec’y Post-Hr’g Br. at 22 (citing Tr. 48, 252-

53; Exh. C-4 at 2).) The Court agrees. M.L. and P.R. were among the employees who required 

training due to the fact they responded to the underlying accident, and M.L. also was a designated 

first aid responder. (Id. at 22 (citing Tr. 160, 164, 244).) Denaka does not dispute the applicability 

of the standard. 

Whether Denaka Violated the Standard 

Generally, “[t]o establish noncompliance with a training standard, the Secretary must show 

that the cited employer failed to provide the instructions that a reasonably prudent employer would 

have given in the same circumstances.” N & N Contractors, Inc., 18 BNA OSHC 2121, at *7 (No. 

96-0606, 2000) (citing Archer-Western Contractors, 15 BNA OSHC 1013, 1019-20 (No. 87-1067, 

1991)). The cited standard here enumerates the elements of a compliant training, therefore the 

Court declines to apply a reasonable employer standard. Compare employer-specific reporting 

requirements, contacts, methods, plans, and training intervals found in §§ 1910.1030(g)(2)(vii)(a)-

(g)(2)(vii)(N) with general fall protection training requirements allowing employee discretion in 

§§ 1926.503(a)(2)(i)-(vii) and “broadly-worded training standard” found at § 1910.134(a) & (b). 

Am. Sterilizer Co., 18 BNA OSHC 1082, at *3 (No. 91-2494, 1997). The Secretary asserts 

Denaka’s training program was deficient because the company did not meet several requirements 

contained in the standard and therefore failed to train its employees. (Sec’y Post-Hr’g Br. at 22.)

Among other things, the company lacked a written bloodborne pathogens control plan that was 

specific to the company and its worksite, according to the Secretary. (Id. at 23.) The Secretary 

argues further, assuming Denaka had a control plan, it failed to explain, among other things, how 

employees could obtain a copy, who managed the program, what constitutes an exposure, which 
22

types of PPE to use and where to find them, and an explanation of procedures employees must 

follow after an incident. (Id.) 

The Court finds testimony from Denaka employees and management establishes it 

provided some training in first aid, CPR, and bloodborne pathogens to its employees. (Tr. 230-31, 

252-53, 307-08; Exhs. C-5, C-6, C-7, C-8.) As evidence of its program, Denaka points to American 

Heart Association bloodborne pathogen student workbooks Hepner provided to OSHA during the 

investigation. (Exhs. C-5, C-8.) CSHO Townsend also testified Hepner sent the National Safety 

Council’s Bloodborne Pathogens workbook as evidence of abatement. (Tr. 62-64, 126; Exh. 6.)

The Court finds, however, Denaka’s training program was inadequate, and therefore the company 

violated the standard. The documents relied upon by Denaka and set forth in the record neither 

address the company’s policies, practices, and procedures nor the conditions at its facility, all of 

which are required by the standard. See O'Brien Concrete Pumping, Inc., 18 BNA OSHC 2059, at 

*4 (No. 98-0471, 2000) (“What matters is the content of this training, and whether it specifically 

addressed both the hazards associated with their work and the applicable OSHA standards.”) 

(citing El Paso Crane, 16 BNA OSHC 1419, 1425 nn.6 & 7 (No. 90-1106, 1993). An examination 

of the National Safety Council and American Heart Association documents reveals, as CSHO 

Townsend testified, they were not “site specific” items Denaka was “training their employees on, 

such as their site specific exposure control plan, you know, what do they do if they get blood on 

them, who are they supposed to report it to.” (Tr. 56); cf. Atl. Battery Co., 16 BNA OSHC 2131, at 

*51 (No. 1994) (vacating hazard communication training violation where evidence in the record 

did not support OSHA inspector’s conclusion employees had not been trained). CSHO Townsend 

also credibly testified to a number of other deficiencies in the generic plans, such as a lack of 

information regarding PPE and where to go to seek treatment in the event of exposure. (Tr. 56-57.) 

Denaka asserts it complied with the standard because, although it cannot point to a specific 

document, it communicated the information required by the standard to its employees and 

conducted several training courses on bloodborne pathogens and first aid, including one before the 

accident. (Resp’t Post-Hr’g Br. at 15 (citing Tr. 206; Exhs. C-4 at 3, C-5, C-8).) Denaka also asserts 

it trained employees on when to notify supervisors, how to report incidents, and where to find 

personal protective equipment, even if these items were not memorialized in a written plan. (Id. at 

15 (citing Tr. 307-08).) The Commission has recognized that in certain circumstances company 

safety rules, policies, and instructions do not need to be written so long as they are clearly and 
23

effectively communicated to employees. See Capform, Inc., 19 BNA OSHC 1374, at *2 (No. 99-

0322, 2001) (“[T]he Commission has stated, ‘section 1926.21(b)(2) does not limit the employer in 

the method by which it may impart the necessary training.’ ” (quoting Concrete Constr. Co., 15 

BNA OSHC 1614, 1920 (No. 89-2019, 1992)). However, this argument is inconsistent with the 

standard at issue here, which requires the training program contain, at a minimum, “[a]n 

explanation of the employer’s exposure control plan and the means by which the employee can 

obtain a copy of the written plan.” 29 C.F.R. § 1910.1030(g)(2)(vii)(D) (emphasis added). See 

Jesco, Inc., 24 BNA OSHC 1076, at *2 (No. 10-0265, 2013) (“If the wording is unambiguous, the 

plain language of the standard will govern, even if [a party] posits a different interpretation.”); Am. 

Fed’n of Gov’t Emps., Local 2782 v. FLRA, 803 F.2d 737, 740 (D.C. Cir. 1986) (“regulations are 

to be read as a whole, with each part or section . . . construed in connection with every other part 

or section”) (internal quotation marks and citation omitted). The record establishes Denaka’s 

training did not contain an explanation of its exposure control plan and the company did not have 

a written control plan, both of which were required by the standard. Hepner recognized this in an 

email to CSHO Townsend, which stated “we do not have a written program for [b]loodborne 

pathogens.” (Exh. C-8 at 3.) And at trial, Balka testified he “underst[ood] we should have had this 

program written down.” (Tr. 306-08.) As Denaka did not have a written plan, the Court finds 

Denaka employees did not receive the training required by the standard. The standard was violated.

Whether Employees Had Access to the Violative Condition 

As CSHO Townsend testified, Denaka’s designated first aid responders, such as M.L., 

could be exposed to bloodborne pathogens hazards, such as HIV, Hepatitis B and C, without a 

proper training program. (Tr. 57.) The Court finds the Secretary has established the access element. 

Denaka provided P.R., M.L., and others with a training program that did not meet the requirements 

of the cited standard, and M.L. and P.R. responded to an accident involving bloodborne pathogens. 

See Offshore Shipbuilding, 18 BNA OSHC 2169, at *2 (affirming training violation of confined 

space standard where untrained employee was in a ballast tank and therefore “exposed to the 

conditions the standard was intended to protect against”). Indeed, even if the accident and 

corresponding response had not occurred here, the Court finds Denaka’s designated first aid 

responders were exposed to the hazardous condition due to Denaka’s inadequate bloodborne 

pathogen program training. See Bardav, Inc., 14 BNA OSHC 2105, at *10 (No. 10-1055, 2014) 

(citing Gen. Motors Corp., 22 BNA OSHC 1019, 1030 (Nos. 91-2834E & 91-2950, 2007) 
24

(unreasonable to require actual employee exposure to a hazard before requiring training to 

recognize and avoid that hazard)).

Whether Denaka Had Knowledge of the Violative Condition 

Several factors establish Balka not only knew training on a compliant bloodborne 

pathogens exposure control plan was required for employees, but he also knew the training was 

inadequate. Balka was aware training was required because Denaka had been cited for a violation 

of the same standard following the 2016 accident, and this item was affirmed by the judge and did 

not reach the Commission on review. Home Rubber, 2021 WL 3929735, at *57 (“Mr. Balka knew 

a bloodborne pathogen policy and training were needed but did not ensure the policy and training 

were developed and implemented.”) (ALJ). The fact Denaka actually trained its employees 

establishes it knew training was required by the standard. (Tr. 306.) But, as discussed above, 

Hepner and Balka, both management officials at Denaka during and after the 2016 investigation, 

knew the training was deficient in that the company failed to present a written bloodborne 

pathogens control plan setting forth facility and company-specific information. (Exh. C-8 at 3, Tr. 

306-08.) Denaka had actual knowledge of the violative condition.14

The Court finds the Secretary has established all elements of her burden of proof for 

Citation 2, Item 3. 

CHARACTERIZATION OF THE VIOLATION

The Secretary characterized the violations as willful-serious. A serious violation is 

established when there is “a substantial probability that death or serious physical harm could result 

[from a violative condition] . . . unless the employer did not, and could not with the exercise of 

reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k). “This does not 

mean that the occurrence of an accident must be a substantially probable result of the violative 

condition but, rather, that a serious injury is the likely result if an accident does occur.” ConAgra 

Flour, 16 BNA OSHC 1137, at *7. 

Here, CSHO Townsend testified the machine guarding violation was serious “[b]ecause it 

resulted in an injury that was beyond first aid treatment.” (Tr. 45.) As the accident demonstrates, 

14 Alternatively, and at a minimum, the record establishes Denaka’s constructive knowledge of the violative condition. 

With the exercise of reasonable diligence, Denaka could have known training on a site-specific bloodborne pathogens 

exposure control plan was required and its training program was deficient. Hazards at the worksite, including knives 

and machinery, as well as its designation of first aid responders, put Denaka on notice that bloodborne pathogens 

exposure control plan training was required.
25

serious injury is the likely result if employee exposure to the unguarded rotating spool occurs. 

Townsend also testified the Hepatitis B vaccine violation was serious “[b]ecause Hepatitis B would 

result in treatment beyond first aid.” (Tr. 50.) The Secretary asserts the bloodborne pathogens 

control plan training violation is also serious. As CSHO Townsend testified, “HIV, Hepatitis B and 

C would all result in treatment beyond first aid treatment.” (Tr. 58.) This testimony is consistent 

with Commission precedent recognizing the serious nature of exposure and potential exposure to 

bloodborne pathogens based upon the effects of Hepatitis B. See, e.g., Home Rubber, 2021 WL 

3929735, at *12 n.17 (“Hepatitis B can result in ‘serious liver’ diseases, with about one third of 

infected individuals experiencing ‘severe’ symptoms including jaundice, extreme fatigue, 

anorexia, nausea, and abdominal pain, and some developing ‘Fulminant hepatitis’ which is ‘85% 

fatal even with the most advanced medical care.’” (quoting 56 Fed. Reg. 64,004, 64,009 (Dec. 6, 

1991)); Waldon Health Care Ctr., 16 BNA OSHC 1052, at *11 (No. 89–2804, 1993) (“a person 

who contracts the HBV virus is likely to suffer death or serious physical harm’). The Court 

therefore finds the cited violations can result in serious injuries or death. 

The Secretary characterized each of the cited “serious” violations as willful. To prove a 

willful citation, the Secretary must show that an employer’s violations of the Act were “committed 

with intentional, knowing or voluntary disregard for the requirements of the Act, or with plain 

indifference to employee safety.”15 Tampa Shipyards Inc., 15 BNA OSHC 1533, 1539 (No. 86-

360, 1992) (consolidated). “To prove intentional disregard, the Secretary must show that the 

employer (1) had a heightened awareness of the applicable standard or provision prohibiting the 

conduct or condition and (2) consciously disregarded the standard.” Jim Boyd Constr., Inc., 26 

BNA OSHC 1109, 1111 (No. 11-2559, 2016) (internal quotations omitted). The employer’s state 

of mind is the key inquiry. See Propellex Corp., 18 BNA OSHC 1677, 1684 (No. 96-0265, 1996) 

(“The Secretary must show that the employer was actually aware, at the time of the violative act, 

15 The Court notes Denaka is a New Jersey company and the worksite in this case is located in New Jersey, which is 

within the jurisdiction of the U.S. Court of Appeals for the Third Circuit. Since it is probable that any Commission 

decision will be appealed to the Third Circuit, the Court briefly discusses the law of that circuit to the extent it differs 

from Commission precedent. See Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (Under 29 

U.S.C. §§ 660(a) and (b), the “employer or Secretary may appeal Commission order to federal court of appeals for 

circuit in which violation allegedly occurred, or where employer has its principal office; employer also may appeal to 

District of Columbia Circuit[.]”). Although the Third Circuit frames its willfulness test as “an ‘obstinate refusal to 

comply’ with safety and health requirements[,] that [test] ‘differs little from’ the Commission and majority-circuit 

test.” George Campbell Painting Corp., 17 BNA OSHC 1979, 1982 (No. 93-984, 1997) (quoting Universal Auto 

Radiator Mfg. Co. v. Marshall, 631 F.2d 20, 23 (3d Cir.1980)). Because there is no practical difference between the 

Third Circuit’s test and the Commission’s test, the Court discusses Commission precedent in its analysis.
26

that the act was unlawful, or that it possessed a state of mind such that if it were informed of the 

standard, it would not care.”). 

Machine Guarding Violation 

The Secretary argues the machine guarding violation was willful because Denaka had 

heightened awareness of the cited requirement yet waited until after the 2020 accident to abate the 

hazard. (Sec’y Post-Hr’g Br. at 11.) Specifically, the Secretary claims Denaka did not install any 

guarding on the Slitter mill until 22 years after the audit, five years after the 2016 accident on a 

different mill that resulted in an employee’s four fingers being amputated, and one month after the 

accident at issue that resulted in the amputation of S.H.’s left arm. (Id. at 11-12.) Even then, 

Denaka’s choice of guarding, a foot pedal, was inadequate. (Id. at 12.) The Secretary asserts 

Denaka only installed a light curtain when this case reached trial. (Id.) The Secretary contends the 

Court should reject Denaka’s argument that the violation is not willful due to OSHA not 

specifically citing the company for failing to guard the Slitter mill because OSHA’s failure to 

previously cite the company does not amount to approval of the condition. (Id. at 13.) 

Denaka argues the machines cited in 2016 for guarding violations were substantially 

different from the Slitter mill, and, in any event, Lord viewed the Slitter mill and even issued a 

citation for a piece of electrical equipment on it. (Resp’t Post-Hr’g Br. at 18.) Denaka asserts 

“[b]ecause [i]t did not have ‘heightened awareness’ of the standard, [it] could not have 

‘consciously disregarded that standard.’ ” (Id. at 18 (quoting Home Rubber, 2021 WL 3929735, at 

*2 (internal quotations omitted)).) 

The Court agrees with the Secretary that Denaka had a heightened awareness of OSHA’s 

machine guarding requirements as a result of the 1999 audit report, as well as previous machine 

guarding citations issued in 2010, 2012, and 2016. See MVM Contracting Corp., 23 BNA OSHC 

1164, 1167 (No. 07-1350, 2010) (employer’s heightened awareness of OSHA standard’s 

requirements established where supervisor was previously informed of requirements). Denaka also 

knew the Slitter mill was unguarded because Balka testified the company had not changed or 

modified the mill since he had purchased the company, he had observed employees operating the 

mill, and it was in plain view on the facility floor. Further, Balka’s heightened awareness for the 

purposes of finding the violation willful is imputable to Denaka. See Branham Sign Co., 18 BNA 

OSHC 2132, at *2 (No. 98-752, 2000) (“The state of mind of a supervisory employee, his or her 

knowledge and conduct, may be imputed to the employer for purposes of finding that the violation 
27

was willful.”).

Despite Balka’s heightened awareness of the machine guarding requirement, the Court 

finds the Secretary failed to establish Balka had heightened awareness of the illegality of the cited 

conditions. Although Balka was aware of the machine guarding standard and knew the Slitter mill 

was unguarded, the Secretary has failed to show Balka was aware the unguarded mill did not 

comply with the standard. See Stark Excavating, Inc., 24 BNA OSHC 2215, at *7-8 (Nos. 09-0004 

& 09-0005, 2014) (“Based on our review of the record, we find the Secretary has not shown that 

the superintendent was, in fact, aware that the excavation was noncompliant.”), aff’d, 811 F.3d 

922 (7th Cir. 2016). OSHA did not allege the Slitter mill lacked guarding in any of the previous 

guarding citations, and the 1999 audit report recommended guarding generally, rather than 

guarding specifically for that mill. Moreover, as discussed above, AAD Lord observed the Slitter 

mill at rest in 2016, and OSHA cited Denaka for a torn strain relief on an electrical cable that 

attaches to control panel for the mill, rather than machine guarding. Home Rubber, 2021 WL 

3929735, at *54 (ALJ). While the Court agrees with the Secretary that OSHA’s previous failure to 

cite Denaka for failing to guard the Slitter mill does not amount to approval of the violative 

condition, the Secretary has failed to show Denaka had the requisite state of mind regarding the 

Slitter mill’s lack of guarding to support a willful violation of the standard. See Hern Iron Works, 

Inc., 16 BNA OSHC 1206, at *8 (No. 89-433, 1993) (“A willful violation is differentiated by 

heightened awareness of the illegality of the conduct or conditions and by a state of mind of 

conscious disregard or plain indifference when the employer committed the violation.”). The Court 

therefore characterizes the machine guarding violation set forth in Citation 2, Item 1 as Serious. 

Hepatitis B Vaccine Violation

The Secretary again argues Denaka’s failure to offer the Hepatitis B vaccine to employees 

within ten days of initial assignment as designated first aid responders was willful since the 

company had heightened awareness of the requirements of the standard. (Sec’y Post-Hr’g Br. at 

18.) Specifically, the Secretary argues Balka admitted he knew the requirements of the standard, 

which was confirmed by AAD Lord’s testimony she told him about the standard during the 2017 

closing conference and gave him OSHA’s fact sheet containing the requirements of the standard. 

(Sec’y Post-Hr’g Br. at 18, 20 (citing Exh. C-3 at 18).) The Secretary argues the 2016 citation also 

made clear the company was required to offer the vaccine after initial assignment, rather than after 

exposure. (Id. at 20 (citing Exh. C-3 at 15).) In addition to the documentation provided by OSHA, 
28

the Secretary further asserts documents Denaka handed over to the agency during the 2016 and 

2020 investigations support a finding the company was aware of the standard’s requirements. 

Denaka provided OSHA the National Safety Council’s workbook, which contains, among other 

things, the vaccination standard, as well as the American Heart Association’s workbook, which 

provides employers should make the vaccine available. (Id. at 19-21 (citing Exhs. C-6, C-7, C-8).) 

Balka’s conduct, according to the Secretary was willful because he had access to all this 

information and decided not to offer the vaccine sooner. (Id. at 19.) 

Denaka argues it did not intentionally, knowingly, or voluntarily disregard OSHA standards 

in offering the vaccine to employees who cleaned up the area around the Slitter mill immediately 

following the 2020 accident. (Resp’t Post-Hr’g Br. at 23.) Denaka again recites OSHA did not 

instruct it “to offer the vaccine at the time of training” and the record demonstrates it took steps 

to ensure the safety of its employees based upon OSHA’s representations following the 2016 

accident. (Id.) Due to its good faith efforts to comply with the standard’s provision, Denaka asserts 

any failure on its part to timely offer the vaccine does not amount to a willful violation of that 

provision. (Id. at 23-24.) 

As set forth above, Denaka’s interpretation of the standard is flawed, and the fact OSHA 

neither previously cited the company for failing to offer the vaccine after the trainings occurred, 

nor instructed it to do so, does not relieve the company of its duty to comply. Denaka also was 

aware of the standard. It was included in the 2016 citation and related judge’s decision, as well as 

in the NSC workbook. See Home Rubber, 2021 WL 3929735, at *56 (ALJ); Exhs. C-6 at 59, R-27 

at 42. Denaka also was aware it did not offer the vaccine to employees after they had completed 

their bloodborne pathogens training or within ten days of becoming designated first aid responders, 

as evidenced by the fact it offered the vaccine after the December 2020 accident.

However, the Court finds the Secretary failed to establish Denaka acted with the requisite 

state of mind to support a willful violation. Denaka offered the vaccine series to the employees 

who responded to the 2020 accident on the Monday following the Friday accident. (Tr. 208.) P.R. 

and Balka signed waivers, and M.L. received his first dose on December 23, 2020. (Tr. 208, 283; 

Exh. C-3 at 2; Exh. R-30.) By offering the vaccine, albeit after the exposure event, Denaka did not 

act with plain indifference to employee safety. Further, the timing of Denaka’s vaccine offer to its 

employees is consistent with its flawed understanding of the standard, which the company believed 

required it to do so within ten days of the exposure event. Therefore, the Court finds Denaka’s 
29

violation of the standard was negligent rather than willful. See Gen. Motors Corp., 22 BNA OSHC 

at 1043 (“[T]he Commission and courts distinguish ‘between mere negligence and willfulness, 

holding that the former is sufficient for affirming a non-willful violation, but that willfulness is 

characterized by an intentional, knowing failure to comply with a legal duty.’” (quoting Manganas 

Painting Co., 21 BNA OSHC 1964, 1991 (No. 94-0588, 2007)). The Court therefore characterizes 

the hepatitis B vaccination violation set forth in Citation 2, Item 2 as Serious. 

Bloodborne Pathogens Control Plan Training 

The Secretary also argues Denaka’s failure to train its employees regarding the hazards 

associated with exposure to bloodborne pathogens was willful. The Commission has found an 

employer’s failure to train its employees is willful where it had general knowledge of the standard 

and failed to provide a compliant training program. See Gen. Motors Corp., 22 BNA OSHC 1019, 

at *33; E. Smalis Painting, Co., 22 BNA OSHC 1553, at *26 (No. 94-1979, 2009) (affirming 

training violation as willful where employer was on notice of requirements due to discussion at 

previous proceeding and failed to train in accordance with the standard). The Secretary asserts 

Denaka managers had a heightened awareness of the standard’s training requirements from their 

involvement in the 2016 accident investigation. (Sec’y Post-Hr’g Br. at 24.) At trial, Balka 

admitted Denaka did not have a written bloodborne pathogens exposure control plan at the time of 

the accident, such that it could have trained its employees on the plan. (Id.) This, according to the 

Secretary, was despite Denaka’s representations to OSHA it had abated the 2016 violation. (Id.) 

Therefore, the Secretary contends, Denaka showed plain indifference to employee health. (Id.) 

Denaka argues it has, in response to the 2016 investigation and citation, made a “conscious 

effort to comply with” the standard and this is supported by evidence it offered and employees 

received bloodborne pathogen and first aid trainings prior to the 2020 accident. (Resp’t Post-Hr’g 

Br. at 24.) Denaka asserts even if its training “neglected to include certain required elements . . . 

mere lapses cannot support a finding of willfulness under the law.” (Id. at 25.) 

The record supports a finding Denaka took some steps following the 2016 accident to train 

its employees regarding bloodborne pathogens and first aid. In 2017, third-party Capital Health 

conducted a bloodborne pathogen training and first aid training. (Tr. 160, 252-53; Exh C-3 at 9-

11.) In 2021 or 2022, the company also provided Hepatitis B training as part of a larger training 

on CPR and first aid. (Tr. 232.) Balka testified Denaka “offer[s] every employee the opportunity 

to be trained on bloodborne pathogens,” and Denaka “had a round of training for bloodborne 
30

pathogens and first aid” since the 2016 accident. (Tr. 302.) Balka also testified Denaka’s 

bloodborne pathogens exposure control plan and training is “all in the [American Heart 

Association] book . . . . All of our employees know how and when and where to report accidents 

and things of that nature. . . . Everybody knows where to get them. Everybody knows where to get 

their PPE.” (Tr. 307-08.) Balka added, “Frankly, I understand we should have had this program 

written down. I don’t see how it would be anything that our employees don’t currently fully 

understand.” (Tr. 308.) 

The American Heart Association workbook, provided by Hepner as Denaka’s exposure 

control plan, meets some requirements of the standard. The workbook explains epidemiology and 

symptoms of bloodborne diseases (§ 1910.1030(g)(2)(vii)(B)) and explains how bloodborne 

pathogens are transmitted (§ 1910.1030(g)(2)(vii)(C)). (Exh. C-8 at 9-10.) The workbook also 

contains information on selecting PPE (§ 1910.1030(g)(2)(vii)(H)) and recognizing biohazard 

symbols (§ 1910.1030(g)(2)(vii)(M)). (Exh. C-8 at 12-13, 16-17.) Based upon Balka’s testimony, 

Denaka may have given employees some site-specific instruction on PPE and steps to take and 

persons to contact in an emergency involving blood (§ 1910.1030(g)(2)(vii)(J)). 

However, these are only five of fourteen enumerated minimum requirements in the 

standard. The workbook provides there are two parts to this training course; the first being the 

material in the workbook, and “[t]he second part is training you must receive on your employer’s 

site-specific exposure control plan.”16 (Exh. C-8 at 6.) The workbook also recognizes “[t]his course 

is designed to meet Occupational Safety and Health Administration (OSHA) requirements when 

used with site-specific training.” (Id.) In the absence of a site-specific exposure control plan, 

Denaka’s program and training did not include “[a]n accessible copy of the regulatory text of this 

standard and an explanation of its contents” (§ 1910.1030(g)(2)(vii)(A)); “[a]n explanation of the 

employer’s exposure control plan and the means by which the employee can obtain a copy of the 

16 The workbook also provides:

The exposure control plan is a set of rules and procedures specific to your workplace. The plan is 

designed to protect you and your coworkers from being exposed to bloodborne pathogens and to 

care for workers who have been exposed to bloodborne pathogens. Your employer will provide this 

training.

****

This workbook refers to the exposure control plan several times. When you see the icon to the left, 

that means you can find more information in your company’s exposure control plan.

(Exh. 8 at 6.)
31

written plan” (§ 1910.1030(g)(2)(vii)(D)); “[a]n explanation of the appropriate methods for 

recognizing tasks and other activities that may involve exposure to blood and other potentially 

infectious materials” (§ 1910.1030(g)(2)(vii)(E)); “[a]n explanation of the use and limitations of 

methods that will prevent or reduce exposure including appropriate engineering controls, work 

practices, and personal protective equipment” (§ 1910.1030(g)(2)(vii)(F)); “[i]nformation on the 

types, proper use, location, removal, handling, decontamination and disposal of personal protective 

equipment” (§ 1910.1030(g)(2)(vii)(G)); “[i]nformation on the hepatitis B vaccine, including 

information on its efficacy, safety, method of administration, the benefits of being vaccinated, and 

that the vaccine and vaccination will be offered free of charge” (§ 1910.1030(g)(2)(vii)(I)); “[a]n 

explanation of the procedure to follow if an exposure incident occurs, including the method of 

reporting the incident and the medical follow-up that will be made available” (§ 

1910.1030(g)(2)(vii)(K)); and “[i]nformation on the post-exposure evaluation and follow-up that 

the employer is required to provide for the employee following an exposure incident” (§ 

1910.1030(g)(2)(vii)(L)).17

The standard also directed Denaka to “train each employee with occupational exposure” 

and to “institute a training program, and ensure employee participation.” 29 C.F.R. § 

1910.1030(g)(2)(i). But Denaka merely “offers” bloodborne pathogens training to all its 

employees, according to Balka, rather than requiring employees who respond to incidents to attend 

training. Further, Denaka was required to provide the training “at least annually” after the initial 

training. 29 C. F.R. §1910.1030(g)(20(ii)(B). There is no evidence in the record Denaka trained 

employees on an annual basis between the 2017 training and the December 2020 accident. 

Arguments advanced by both the Secretary and Denaka, as well as Denaka’s efforts to 

comply, establish the company had a heightened awareness of the standard’s command to “ensure 

that each employee with occupational exposure participated in a training program.” 29 C.F.R. § 

1910.1030(g)(2)(i). In 2016, the Secretary alleged Denaka “did not develop a written bloodborne 

pathogen Exposure Control Plan” and did not “ensure . . . a training program was provided to 

employees.” (Exh. R-27 at 40-41; see Exh. C-4 at 9-10.) Balka learned during the 2016 accident 

proceeding that Denaka’s written policy “was merely a pamphlet from the National Safety 

17 The final requirement is “[a]n opportunity for interactive questions and answers with the person conducting the 

training session.” 29 C.F.R. § 1910.1030(g)(2)(vii)(N). It is unclear from the record whether Denaka’s employees had 

the opportunity to ask questions in the third-party training. Because Denaka did not provide training on a site-specific 

exposure control plan, the Court finds employees did not have the opportunity to ask questions.
32

Council,” and the company admitted in its brief “it did not have a written Exposure Control Plan 

for bloodborne pathogens.” Home Rubber, 2021 WL 3929735, at *55 (ALJ) (citing Resp’t Br. at 

35). Accordingly, the judge found Denaka violated the standard’s requirements to have a written 

plan and provide training.18 Home Rubber, 2021 WL 3929735, at *55 (ALJ); see E. Smalis, 22 

BNA OSHC 1553, at *26 (heightened awareness of standard established where judge had 

emphasized importance of training requirement in earlier proceeding and settlement order). 

Despite Denaka’s acknowledgement it lacked a written exposure control plan, the judge’s 

ruling affirming the related citation items, and Denaka’s failure to challenge it on review, the

company still did not create and train its employees on a site-specific written exposure control plan 

in the fifteen months leading up to the 2020 accident. Therefore, it could not train each employee 

with occupational exposure in accordance with § 1910.1030(g)(2)(i) and the requirements of §§ 

1910.1030(g)(2)(vii)(a)-(g)(2)(vii)(N). Balka, who testified he participated in the 2017 generic 

workbook training, would have seen the workbook’s references to an “employer’s site-specific 

exposure control plan,” yet he disregarded both theses references and the standard’s command to 

create and train on such a plan. (Tr. 306; Exh. C-8 at 6-8, 13, 16, 18, 20, 23, 24, 25, 29, 31, 33.)

This establishes Balka knew Denaka’s bloodborne pathogens training program was deficient as he 

was actually taking the workbook training. Balka confirmed as much during the current proceeding 

by testifying he knew Denaka did not have a written bloodborne pathogen exposure control plan, 

which is required by the standard and the bedrock of the training. (Tr. 306-08.) 

While the Court recognizes physical conditions for the 2016 citations regarding machine 

guarding and vaccination were different from the 2020 accident citation, such that Denaka did not 

act with an intentional, knowing, or voluntary disregard for the Act, the record simply does not 

allow the same finding regarding this item. Denaka, through Balka, knew of both the physical 

conditions creating the violation—Denaka’s lack of a written exposure control plan—and the 

standard’s requirements—to conduct training based upon a written, site-specific exposure control 

plan. Despite Balka’s knowledge, Denaka did not create its own written plan and train its 

employees accordingly. These deliberate, knowing actions are far from what Denaka calls “mere 

lapses.”

18 The judge issued her opinion in September 2019, and Denaka did not seek review of the citation items alleging 

serious violations of § 1910.1030(c)(1)(i) (written exposure control plan) and § 1910.1030(g)(2)(i) (training). (Resp’t 

Pet. for Rev. at 11.) 
33

Because Denaka offered some training on bloodborne pathogens (albeit with the 

knowledge it did not meet the standard’s requirements) the Court rejects the Secretary’s argument 

Denaka has acted with plain indifference towards employee safety. However, based upon Denaka’s 

knowledge of the standard and knowledge that it was not providing a compliant training program, 

the Court finds Denaka acted with intentional, knowing or voluntary disregard for the requirements 

of the Act. See A. G. Mazzocchi, Inc., 22 BNA OSHC 1377, at *13 (No. 98-1696, 2008) (affirming 

willful characterization despite partial compliance, because employer's “incomplete efforts” to 

distribute relevant reports did not negate its decision to knowingly withhold required information). 

Here, Denaka “has been previously cited for [a] violation[] of the standard[] in question, is aware 

of the requirements of the standard[], and is on notice that violative conditions exist.” J.A. Jones 

Constr. Co., 15 BNA OSHC 2201, at *9 (No. 87-2059, 1993). Therefore, the Secretary has “shown 

[Denaka] was actually aware, at the time of the violative act, that the act was unlawful.” Propellex 

Corp., 18 BNA OSHC at 1684. Accordingly, the Court finds the Bloodborne Pathogens Control 

Plan Training violation set forth in Citation 2, Item 3 is properly characterized as willful. 

PENALTY DETERMINATION

The Commission considers “the appropriateness of the penalty with respect to the size of 

the business of the employer being charged, the gravity of the violation, the good faith of the 

employer, and the history of previous violations.” 29 U.S.C. § 666(j). Gravity, according to the 

Commission, “is a principal factor in the penalty determination and is based on the number of 

employees exposed, duration of exposure, likelihood of injury, and precautions taken against 

injury.” Siemens Energy & Automation, Inc., No. 00-1052, 2005 WL 696568, at *3 (OSHRC Feb. 

25, 2005) (citation omitted); see also Natkin & Co. Mech. Contractors, No. 401, 1973 WL 4007, 

at *9, n.3 (OSHRC April 27, 1973) (“Gravity, unlike good faith, compliance history and size, is 

relevant only to the violation being considered in a case and therefore is usually of greater 

significance. The other factors are concerned with the employer generally and are considered as 

modifying factors.”). 

AAD Lord testified the severity of the violation of § 1910.212(a)(1) (machine guarding) 

was high because the violation led to an amputation. (Tr. 168.) She also testified the probability of 

injury was greater because, “in this case, the injury did, in fact occur.” (Tr. 168.) Therefore, the 

gravity was high. (Tr. 168.) As to the penalty, AAD Lord testified there was an automatic reduction 
34

of 30% for employer size.19 (Tr. 169.) OSHA did not make a good faith reduction because it 

characterized the proposed violation as willful and did not make a history reduction because it had 

inspected the company in the past five years and issued citations. (Tr. 169.) It proposed an adjusted 

penalty of $95,572 penalty for this item. The Court agrees with OSHA’s analysis that the gravity 

was high based upon severity and probability. Because the Court finds this violation is serious 

rather than willful, it assesses the maximum serious penalty of $13,653 and reduces it by 30% 

based upon the size of the employer. See 86 Fed. Reg. 2964, 2969-70 (Jan 14, 2021) (maximum 

for a serious penalty assessed after Jan. 15, 2021, but on or before Jan. 15, 2022). Therefore, the 

Court assesses a penalty of $9,557.10 for Citation 2, Item 1. 

Regarding the violation of § 1910.1030(f)(2)(1) (vaccination), AAD Lord testified the 

severity was high due because the type of injury that could occur, such as Hepatitis, “can have 

long-term detrimental effects.” (Tr. 170.) However, she said the probability was lesser because 

employees were not exposed, and they were wearing personal protective equipment during the 

2020 accident clean up. (Tr. 170.) Therefore, the gravity was moderate. (Tr. 170.) OSHA proposed 

a $117,024 penalty and adjusted it to $70,214. (Tr. 170.) Curiously, OSHA and AAD Lord noted a 

30% reduction for Denaka’s size. (Exh. C-3 at 1-2; Tr. 170.) However, OSHA appears to have 

reduced the penalty by roughly 40%. The Court agrees with OSHA’s analysis that the gravity was 

moderate because the severity was high and the probability was lesser. However, because the Court 

recharacterizes the violation as serious, it assesses an adjusted penalty of $8,192 for Citation 2, 

Item 2, which reflects a similar percentage reduction to the one proposed by the Secretary.

AAD Lord also said the gravity of the violation of § 1910.1030(g)(2)(i) (bloodborne 

pathogen exposure control plan training) was moderate. She again testified the severity was high 

because the type of injury that could occur, such as Hepatitis B, “can have long-term detrimental 

effects.” (Tr. 171.) She also testified the probability was lesser because employees, although they 

had occupational exposure as defined by the standard, were not actually exposed and were wearing 

personal protective equipment during the 2020 accident clean up. (Tr. 171.) The Court notes the 

citation carried a penalty of $81,919 for this item, which reflects a roughly 30% reduction from 

$117,024. (Citation at 9-10.) However, the violation worksheet for this item noted, and AAD Lord 

testified, that OSHA proposed an adjusted $70,214 penalty based upon the size of Denaka. (Tr. 

19 Denaka had approximately 35 employees at the time of the 2020 accident, according to Balka. (Tr. 260.)
35

171; Exh. C-4 at 1-2.) The Secretary did not seek to amend the penalty amount for this item 

between the filing of the Amended Complaint and trial. 

Because this amount is less than what the Secretary originally sought, and the Court finds 

AAD Lord’s testimony regarding its appropriateness credible, the Court will enter the penalty 

proposed at trial. The Court also finds this penalty amount appropriate based upon Denaka’s 

disregard for the standard. Although this citation item is for a training violation, Denaka’s failure 

to train its employees on a compliant bloodborne pathogens exposure control plan is especially 

egregious considering its knowledge of the standard, directions in the workbook it relied upon to 

create a site-specific plan, citation history, and warnings from the Commission. The Court affirms 

Citation 2, Item 3, as willful and assesses a penalty of $70,214. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. 

ORDER

Based upon the foregoing decision, it is ORDERED that: 

1. Citation 2, Item 1, alleging a violation of 29 C.F.R. § 1910.212(a)(1), is 

AFFIRMED, recharacterized as serious, and a penalty in the amount of 

$9,557.10 is assessed. 

2. Citation 2, Item 2, alleging a violation of 29 C.F.R. § 1910.1030(f)(2)(1), is 

AFFIRMED, recharacterized as serious, and a penalty in the amount of $8,192 

is assessed. 

3. Citation 2, Item 3, alleging a willful violation of 29 C.F.R. § 1910.1030(g)(2)(i), 

is AFFIRMED and a penalty of $70,214 is assessed. 

SO ORDERED. 

/s/___________________________ 

 Sharon D. Calhoun 

Dated: May 17, 2023 Administrative Law Judge, OSHRC 

 Atlanta, GA