                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-4017
ELAINE CHAO, Secretary, Department of Labor,
                                                    Petitioner,
                              v.

GUNITE CORPORATION,
                                                  Respondent.
                        ____________
              Petition for Review of an Order of the
       Occupational Safety and Health Review Commission.
                      Nos. 98-1986, 98-1987
                        ____________
  ARGUED SEPTEMBER 9, 2005—DECIDED MARCH 24, 2006
                   ____________


  Before BAUER, POSNER, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. After issuing a number of citations
against Gunite Corporation for violations of occupational
safety and health regulations, the Secretary of Labor failed
to convince the Occupational Safety and Health Review
Commission to uphold four of the charges. The Secretary
has petitioned this court to reverse the Commission’s
decision. We conclude that the Secretary is correct: the
Commission’s decision is not supported by substantial
evidence in the record and therefore the case must be
remanded to the agency with instructions to affirm the
citations.
2                                                No. 04-4017

                              I
  Gunite’s foundry in Rockford makes brakes and wheels
for heavy trucks. Its process involves melting scrap iron and
then pouring the molten iron into molds created from a
mixture of sand, clay, and water. The molds then pass along
a series of interconnecting conveyor belts that transport and
cool the iron pieces. As they move along the conveyer belts,
the castings are shaken from the molds; in the process, dust
containing respirable silica becomes airborne. The amount
of this dust is enormous; the process uses some 400 tons of
sand per hour. Breathing silica is dangerous for the
foundry’s workers, as it can lead to silicosis, a deadly
disease that primarily affects the lungs. The Occupational
Safety and Health Administration (OSHA) has accordingly
set ceilings called permissible exposure limits, or PELs, on
the amount of silica that may be present in the air. See 29
C.F.R. § 1910.1000(c).
  Gunite’s foundry was built in the first half of the twenti-
eth century. From the start, it has been plagued with the
problem of controlling the amount of silica dust escap-
ing into the air. In 1977 and again in 1981, OSHA cited
Gunite for violations of the silica PEL. That problem has
intensified since the installation of the conveyer belt system
in 1989. The plant manager described the initial installa-
tion of the conveyor belts as “a disaster.” In order to control
the airborne dust, the plant first tried spraying water to
keep the dust down. When that failed to make a difference,
Gunite installed covers over the conveyer belts. They too
were ineffective, even though they were still being used
several years later when OSHA entered the picture. In
1990, one of Gunite’s insurers reported that employee
exposure to silica exceeded a different measure, the
“threshold limit value” set by the American Conference of
Governmental Industrial Hygienists. Two upgrades later,
Gunite still had too much silica in the air. Another insurer
measured the air four times between June 1996 and March
No. 04-4017                                                  3

1998 and found that foundry employees— including those
at the positions listed in the citations at issue before
us—were being exposed to levels of respirable silica in
excess of OSHA’s PEL. That insurer, Kemper-NATLSCO,
recommended in 1996 that Gunite require its employees to
wear individual respirators until the company could
implement feasible engineering and administrative controls
to limit employee exposure. Gunite seems to have ignored
that recommendation; two reports from Kemper-NATLSCO
in 1997 indicated that employees still were not being
required to wear the individual respiratory protection. In
1996 and 1997, Gunite recorded three cases of silicosis in its
OSHA logs. Gunite itself describes its efforts to deal with
excess silica from 1991 through 1998 as involving four
major engineering projects that together were intended to
bring the foundry into compliance with the silica PEL and
other federal regulations. The last of these, installation of
new covers and a ventilation system over the conveyor
belts, was planned and being implemented in 1998 during
the OSHA inspection, though it did not become fully
functional until March 1999.
  Since 1971, OSHA regulations have required facilities
with excess respirable silica to use engineering or adminis-
trative controls “whenever feasible” to attain compliance
with the PEL. 29 C.F.R. § 1910.1000(e). Only when feasible
engineering or administrative controls are insufficient
to bring silica levels below the PEL may a company turn
to individualized protective equipment to supplement those
controls. Id. This “hierarchy of controls” privileges engineer-
ing and administrative controls because they “make
respiratory protection automatic, while respirators are
dependent on use and constant attention and are subject to
human error.” American Iron & Steel Inst. v. OSHA, 182
F.3d 1261, 1269 (11th Cir. 1999). See also Advance Bronze,
Inc. v. Dole, 917 F.2d 944, 947 n.2 (6th Cir. 1990) (discuss-
ing the hierarchy in the context of lead standards).
4                                                No. 04-4017

  The OSHA inspection leading to the citations involved
in the Secretary’s petition took place between May and
October of 1998. During the inspection, OSHA representa-
tives took samples that showed that workers in four
positions at the foundry were exposed to about 1.6 times the
PEL for respirable silica in an eight-hour shift. OSHA
assigned three members of its Health Response Team
(HRT) to Gunite’s case and asked them to evaluate Gunite’s
administrative and engineering controls. The HRT came up
with a list of proposed administrative and engineering
controls that it concluded would alleviate the airborne silica
problem. The team based its recommendations for engineer-
ing controls “on general principles of ventilation and
industrial hygiene which have been shown to be effective in
reducing contaminant levels in a variety of industries.” One
control measure highlighted in the report was the use of
“clean air islands,” which are devices that blow clean air at
the at-risk employees; the fresh air creates a bubble around
each employee that does not contain dangerous levels of
silica. Other measures on the list included installing
physical barriers to block the areas where the most dust
was kicked up into the air and improving housekeeping and
maintenance. Finally, the report mentioned the new system
of covers for the conveyor belts that Gunite was in the
process of implementing during the OSHA inspection,
although it opined that the new system would solve the
problem for only three of the four employee positions
that were overexposed to silica.
  Based on its investigation of the foundry, the Secretary
issued three citations containing various items, each
alleging violations of federal regulations. Among those were
six items based on the sampling results and the HRT’s
report alleging that Gunite had committed serious and
willful violations of 29 C.F.R. § 1910.1000(c) (the air
contaminant regulation) by exposing employees to respira-
ble silica in amounts in excess of OSHA’s PEL and of
No. 04-4017                                                5

29 C.F.R. § 1910.1000(e) by failing to implement feasible
engineering or administrative controls. Another item
alleged a violation of 29 C.F.R. § 1910.134(e)(4) (1997) by
failing to inspect to ensure proper respirator use. The
Secretary also alleged a willful violation of 29 C.F.R.
§ 1910.95(g)(6) for failure to obtain annual audiograms. Of
these charges, only four are at issue in this petition: items
8a and 8b of citation 1, which charge serious violations of
§ 1910.1000(c) and (e) for overexposing three “mold station”
workers (a metal pourer, coreset/blowoff operator, and mold
line technician) to respirable silica and for failing to
determine and implement feasible administrative
or engineering controls to achieve compliance with the PEL;
and items 3a and 3b of citation 2, which charged willful
violations of the same standards for overexposing a sprue
pulloff operator, who works at a different location in the
factory closer to the finishing process.
  Gunite appealed the citations, contending before the
administrative law judge (ALJ) that it should not be
liable because it was already implementing a new system
designed to alleviate the respirable silica problem and
because of the availability of individual respirators, which
it contended both alleviated overexposures and qualified
as an administrative control. In the pre-hearing docu-
ments made part of the record by the ALJ, the Secretary
designated two members of the HRT team—industrial
hygienist Keith Motley and mechanical engineer Lee
Hathon—as experts. They were expected to testify about
their qualifications, their observations of Gunite’s foundry,
and “administrative and engineering controls to reduce
respirable silica” for the locations identified as having
overexposures, as well as the contents of the HRT report.
Motley’s expertise included 12 years of experience as part
of the HRT responsible for addressing respirable hazards,
while Hathon had served 10 years on the HRT and had
participated in investigations “at several foundries and
6                                                No. 04-4017

other industries where airborne silica is a hazard.” Gunite
objected to both Motley’s and Hathon’s testimony about
actual silica levels as “not probative of exposures of the
cited employees to the cited levels of respirable silica dust.”
Nevertheless, Gunite did “not deny that [Motley’s and
Hathon’s] opinions are probative relative to the question of
engineering controls for some of the cited work areas,”
although the company reserved the right to disagree
substantively with their opinions “in some respects.” At the
hearing, the parties stipulated to the admission of the HRT
report and agreed that the Secretary would not call the
HRT members for direct examination, leaving their testi-
mony in the form of the report itself and other pre-hearing
filings made part of the administrative record. The Secre-
tary, however, planned to and did present them for cross-
examination.
  Both Motley and Hathon were cross-examined about their
qualifications, about their preparation of the HRT report,
and about the recommended engineering controls. Motley
testified about his tour of the plant, during which he was
able to observe firsthand the problem areas and ventilation
systems. When he asked to see the plans for the new
ventilation system, he was shown the actual parts that
Gunite was putting in place. Motley also described the
team’s particular recommended solutions to the airborne
silica problem, including a way generally to filter the plant’s
air before recirculating it. He explained how clean air
islands work and how they might alleviate the problems.
Hathon’s testimony was similar. After answering questions
about his own training and credentials, Hathon testified
that he had previously examined at least seven foundries
similar to Gunite’s in terms of size, age of the building, and
products produced; that he had toured the areas of Gunite’s
foundry with overexposures; and that the HRT report was
designed specifically to address the problems of the Gunite
foundry.
No. 04-4017                                                  7

  Another witness, Julia Evans, an OSHA compliance
officer, testified that an administrative control such as
employee rotation likely would have eliminated the
overexposure. Evans also testified that Gunite’s planned
improvements likely would solve the silica problem at three
of the four employee stations.
  Finally, Gunite’s own witness, Leroy Cator, the 50-year
veteran employee in charge of the abatement process,
testified that “[c]lean air islands are probably effective
and I don’t question that.” However, he also said that
they are difficult to implement because of temperature
control issues, and that they had not been recommended by
the outside engineers working with Gunite. Instead, those
engineers recommended systemic approaches that would
improve the air for many employees rather than individual-
ized approaches. He admitted, however, that clean air
technology was used elsewhere in the foundry, near the
pouring line.
  The ALJ affirmed the four citations (as well as the others
not at issue here), finding that “except for clean air islands,
Gunite has not challenged [the HRT’s] recommendations.”
The ALJ also found that Gunite’s future plans to solve the
problem did not relieve the company of liability. Likewise,
the use of respirators did not alleviate Gunite’s obligation
to implement systemic administrative or engineering
controls that would make individual respirators unneces-
sary.
  Gunite appealed the ALJ’s determination to the Commis-
sion, which by a divided vote affirmed some of the citations,
but vacated the four now before us. The majority found that
the Secretary had failed to prove that the proposed engi-
neering and administrative controls would produce a
“significant reduction” in respirable silica:
    The Secretary’s case for establishing technological
    feasibility rests primarily on OSHA’s HRT report and
8                                                No. 04-4017

    supporting testimony by compliance officer Evans and
    HRT members Lee Hathon and Keith Motley. Neither
    compliance officer Evans nor the HRT members were
    qualified as experts. The HRT report identified deficien-
    cies in Gunite’s controls and recommended additional
    controls, including general ventilation to reduce
    plantwide levels of air contaminant and specific con-
    trols to address areas where sampling results showed
    employee exposure in excess of the PEL. . . .
    We conclude that the evidence of record as a whole
    is insufficient to prove that the controls suggested by
    the Secretary would produce a significant reduction
    in airborne respirable silica in the foundry. Because
    neither compliance officer Evans nor any of the HRT
    members were presented by the Secretary as expert
    witnesses, the record lacks sufficient evidence to
    establish that the proposed controls were technologi-
    cally feasible. Moreover, the testimony failed to quan-
    tify the expected or anticipated amount of silica dust
    reduction. At most, the HRT report provided a list
    of control technologies for Gunite to experiment with in
    the hope that some of them or some combination of
    them would reduce employee exposure to some unde-
    fined levels.
The Commission then found that because the Secretary had
failed to show a technologically feasible engineering control,
the use of respirators by employees was sufficient. (Some-
what inexplicably, the Commission found that the evidence
of the respirator use on the day the air was tested was
sufficient to vacate those items, even though elsewhere it
affirmed a separate item by finding that “Gunite’s lax
enforcement of respirator use in the foundry constituted
willfulness.”)
 The dissenting commissioner found that the HRT report
was “comprehensive” and that it recommended a number of
No. 04-4017                                                  9

feasible administrative and engineering controls. She also
concluded that the witnesses’ credentials made their
testimony “sufficiently reliable” and that Gunite had
failed to challenge the witnesses’ expertise. Furthermore,
she wrote, “[T]he fact that the Secretary did not present the
HRT members as experts does not diminish the probative
value of their testimony. . . . To the extent that the majority
would find dispositive the lack of ‘expert’ testimony from
the Secretary in order to meet her burden, and since this
issue has not been previously briefed, I would remand.”


                              II
  This court has jurisdiction under 29 U.S.C. § 660(b) to
review on the Secretary’s petition “any final order” of the
Commission. The Commission’s “function is to act as a
neutral arbiter.” Cuyahoga Valley Ry. Co. v. United Transp.
Union, 474 U.S. 3, 7 (1985) (per curiam). Where the Com-
mission reverses an ALJ, it is the Commission’s order alone
that is reviewed. See Marshall v. West Point Pepperell, Inc.,
588 F.2d 979, 984 (5th Cir. 1979). In reviewing the Commis-
sion’s conclusions in enforcement actions, we follow the
dictates of the Administrative Procedure Act, 5 U.S.C. § 701
et seq., and review interpretations of law with deference to
determine only whether they are “arbitrary or capricious”
or contrary to law. See 5 U.S.C. § 706; Sierra Resources, Inc.
v. Herman, 213 F.3d 989, 992 (7th Cir. 2000); Caterpillar,
Inc. v. Reich, 111 F.3d 61, 62 (7th Cir. 1997). Where,
however, a dispute exists between the Secretary and the
Commission about an interpretation of OSHA or regulations
adopted under its umbrella, the Secretary’s interpretation
is entitled to deference if it “sensibly conforms to the word-
ing and purpose” of the relevant provisions. Martin v.
OSHRC, 499 U.S. 144, 150-51 (1991) (quoting Northern
Indiana Pub. Serv. Co. v. Porter Cty. Chapter of Izaak
Walton League of America, Inc., 423 U.S. 12, 15 (1975)). In
10                                               No. 04-4017

reviewing the facts, we uphold the Commission if its
findings are “supported by substantial evidence on the
record considered as a whole.” 29 U.S.C. § 660(a); see Sierra
Resources, 213 F.3d at 992. Our deference to the Commis-
sion includes deference to its credibility determinations,
except in extraordinary circumstances. Id.
  The Secretary bears the burden of proof in demonstrating
the feasibility of administrative and engineering controls
“when the compliance remedy is based upon a very general
statutory or regulatory command that does not describe for
the employer any specific methods for compliance.” Fault-
less Div., Bliss & Laughlin Indus., Inc. v. Sec’y of Labor,
674 F.2d 1177, 1189 (7th Cir. 1982); Modern Drop Forge Co.
v. Sec’y of Labor, 683 F.2d 1105, 1113 (7th Cir. 1982). As
the Commission itself has noted, however, “[t]he test of
whether administrative and/or engineering controls are
technologically feasible is whether the controls are ‘achiev-
able’ and capable of producing a significant reduction in
exposure to air contaminants.” Sec’y of Labor v. G & C
Foundry Co., 17 O.S.H. Cas. (BNA) 2137, 1997 WL 447196,
*4 (Rev. Comm’n 1997). Although a significant reduction is
required, it is not necessary to show that the control would
achieve full compliance. Id. “The Secretary need not [ ]
propose or prove the feasibility of a detailed abatement
program. [She] need only show that some controls are
feasible in an employer’s plant.” Sec’y of Labor v. Great
Falls Tribune Co., 5 O.S.H. Cas. (BNA) 1443, 1977 WL
8017, *3-4 (Rev. Comm’n 1977) (internal citation omitted).
There is no magic percentage of reduction that is required;
all that is required is that the administrative or engineering
control be systemic—so that, unlike with respirators, an
individual employee’s mistake cannot eviscerate her
protection—and that it produce a significant reduction in
silica.
  In this case, the Commission found that the Secretary
failed to carry her burden on feasibility, but it is hard
No. 04-4017                                                11

to discern why it came to this conclusion. On one reading of
the opinion, it seems that the Commission might be saying
that the Secretary failed either to present any evidence of
feasibility or that she failed to present necessary expert
evidence of feasibility, and thus failed to meet her burden
of proof. This, at least, is the way one might understand the
portions of the Commission’s opinion stating that “neither
compliance officer Evans nor any of the HRT members were
presented by the Secretary as expert witnesses. . . .” and
“the Secretary offered no expert testimony in attempting to
meet her burden of proof.” In the alternative, the opinion
might be interpreted as finding that the Secretary’s wit-
nesses lacked expertise, as where the Commission writes
that “[n]either compliance officer Evans nor the HRT
members were qualified as experts.” Or the Commission
might have been faulting the Secretary for failing to jump
through some procedural hoops in presenting her evidence
or designating her experts.
  Our problem with the Commission’s opinion is twofold.
First, it did not adequately explain why it concluded that
the Secretary failed to satisfy her burden. It is neither
proper nor feasible for us to fill in the blanks with our own
guesses. Second, even if we somehow succeeded in con-
structing a rationale for the Commission’s result, we
conclude that its factual conclusions are contrary to
the “substantial evidence on the record considered as a
whole.” Finally, nothing in the record hints at any purely
procedural failing in the Secretary’s handling of the case.
The Commission generally follows the Federal Rules of
Civil Procedure, 29 C.F.R. § 2200.2(b), but it does so in a
manner designed to “secure an expeditious, just and
inexpensive determination of every case.” 29 C.F.R.
§ 2200.2(c). It is the role of the ALJ, among other things, to
“[r]ule upon offers of proof and receive relevant evidence”
and “introduce into the record documentary or other evi-
dence”; the judge may also ask the parties to state their
12                                               No. 04-4017

positions on issues. 29 C.F.R. § 2200.67 (d), (j), (k). Wit-
nesses generally must testify under oath or affirmation and
must be subject to cross-examination, 29 C.F.R. § 2200.69,
and the Federal Rules of Evidence govern the proceedings.
29 C.F.R. § 2200.71. Gunite has not pointed to any particu-
lar problem under those rules, and so we conclude that the
Commission could not have rejected the ALJ’s opinion on
this ground.
  The other three possibilities all, in one way or the other,
attack the sufficiency of the evidence the Secretary pre-
sented to support the citations. In applying the substantial
evidence rule, our point of reference is the Commission’s
opinion. As we have said before, “[w]e cannot uphold a
decision by an administrative agency . . . if . . . the reasons
given by the trier of fact do not build an accurate and
logical bridge between the evidence and the result.” J.C.
Penney Co. v. NLRB, 123 F.3d 988, 995 (7th Cir. 1997)
(quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.
1996)). See also Blakes ex rel. Wolfe v. Barnhart, 331 F.3d
565, 569 (7th Cir. 2003).
  If we interpret the Commission’s decision as holding
that the Secretary utterly failed to present any evidence
of feasibility that could satisfy her burden of proof, we
can easily reject that conclusion as contrary to the record as
a whole. This would be obvious if the Secretary had pre-
sented Hathon and Motley as witnesses on direct, but the
method of proceeding to which all parties agreed does not
change the result. The parties stipulated that the HRT
report would be admitted into evidence, and it was. Then,
as agreed, the Secretary presented both Motley and Hathon
for cross-examination. Their testimony on cross covered
much of the same material that a direct examination
normally would have covered—their credentials, their
inspection of the foundry, and the basis for their report and
conclusions. Furthermore, the ALJ specifically made part of
the record the pre-trial pleadings, see 5 U.S.C. § 556(e),
No. 04-4017                                                13

which also covered much of the same ground. Even the
Commission acknowledged that “Gunite challenged only the
feasibility of clean air islands” and not the many other
recommended controls, which included basic housekeeping,
employee hygiene, and employee rotation. Indeed, the
parties agreed that the already planned—but not imple-
mented—improvements would significantly decrease the
silica exposure for the molding line employees. In the
absence of any rebuttal or specific evidence about
nonfeasibility from Gunite, the Secretary’s evidence is more
than sufficient to carry her burden. See, e.g., Sec’y of Labor
v. Smith Steel Casting Co., 15 O.S.H. Cas. (BNA) 1001, 1991
WL 81019, at *10 (Rev. Comm’n 1991) (finding sufficient
evidence when the testimony of the Secretary’s single
witness on technological feasibility was undisputed). In
administrative litigation as elsewhere, if both sides agree
on a matter, such as the fact that the planned changes
would significantly decrease the level of silica in the
foundry’s atmosphere, there is no requirement that evi-
dence be introduced to support that fact or conclu-
sion. A contrary rule would bog down the administrative
process with unnecessary evidence on uncontested facts.
The feasibility inquiry is governed by “realism and common
sense.” Sec’y of Labor v. Sherwin-Williams Co., 11 O.S.H.
Cas. (BNA) 2105, 1984 WL 34904, *7 (Rev. Comm’n 1984)
(quoting Donovan v. Castle & Cooke Foods, a Div. of Castle
& Cooke, Inc., 692 F.2d 641, 650 (9th Cir. 1982)). While the
Commission majority tried to distinguish Sherwin-Williams
and Castle & Cooke Foods by suggesting that expert
testimony may be unnecessary only where the feasibility
challenged is economic (as it was in those cases) rather than
technological (as in Gunite’s case), we see no principled
distinction between the two issues. “Realism and common
sense” are equally applicable in both realms.
  If we think instead that the Commission took the position
that Hathon and Motley were not experts, lacked expertise,
14                                                No. 04-4017

or were somehow not properly designated as experts, that
interpretation likewise collapses in the face of the record.
We have said that a court excluding expert testimony must
“articulate with reasonable specificity the reasons why it
believes the testimony is insufficiently reliable to qualify for
admission,” because otherwise the lack of such explication
makes it difficult (or impossible) for us meaningfully to
review the court’s decision. Mihailovich v. Laatsch, 359 F.3d
892, 919 (7th Cir. 2004). Here, the Commission’s opinion
suggests less an evaluation of the witnesses’ testimony and
more “an utter disregard for uncontroverted sworn testi-
mony” and other evidence presented by the Secretary. Jet
Star, Inc. v. NLRB, 209 F.3d 671, 676 (7th Cir. 2000)
(quoting Carry Cos. of Ill., Inc. v. NLRB, 30 F.3d 922, 928
(7th Cir. 1994)). Especially in administrative adjudication,
there is no magical set of procedures for designating
someone as an expert witness. As we observed in United
States v. Williams, 81 F.3d 1434, 1442 (7th Cir. 1996), the
“difference between an expert witness and an ordinary
witness is that the former is allowed to offer an opinion,
while the latter is confined to testifying from personal
knowledge.” The test is whether the witness has “special-
ized knowledge that the lay person cannot be expected to
possess” and reasonably applies that knowledge to the
relevant facts. United States v. Conn, 297 F.3d 548, 554-55
(7th Cir. 2002). In this case, both the Secretary and Gunite
recognized Hathon’s and Motley’s expertise, as Gunite
admitted that their testimony would be probative on the
issue of feasible engineering controls.
  Gunite’s argument on appeal is primarily limited to
a reminder that the court should defer to the Commis-
sion’s decision when that decision is supported by sub-
stantial evidence, but its brief is remarkably short on
specific evidence that might have supported this partic-
ular ruling. If the Commission had made a reasoned
decision supported by substantial evidence in the record, we
No. 04-4017                                                15

would defer to that decision, even if we ourselves
might have preferred another outcome. Such deference
extends to credibility determinations about witnesses,
including expert witnesses. See Sierra Resources, 213 F.3d
at 992. Nonetheless, deference has its limits. In order for us
to uphold an administrative commission’s decision, there
must be “an accurate and logical bridge between the
evidence and the result.” J.C. Penney, 123 F.3d at 995. That
same bridge is necessary between the evidence in the record
and the credibility determination about expert testimony.
The Commission’s opinion in this case does not meet those
standards. No matter how we look at it, the opinion is not
supported by substantial evidence.
  Finally, we address two additional arguments that Gunite
briefly advances. The first is that the employees’ use of
individual respirators solved the problem so well that
Gunite should not be liable. But the hierarchy of controls,
as we noted above, requires feasible administrative or
engineering controls; it permits individualized protective
equipment such as respirators only when such systemic
administrative or engineering controls are not feasible. See
29 C.F.R. §§ 1910.1000(e), 1910.134; American Iron & Steel
Inst., 182 F.3d at 1269. Nothing in this case provides any
basis for rethinking the hierarchy-of-controls policy, which
is now more than three decades old. The fundamental
reason the regulation privileges system-
ic over individualized controls is that the latter can be
undermined by workers’ failure to use them or their misuse
of them. Gunite’s foundry provides a textbook example, as
evidence in the record indicates that some employees chose
not to use the individualized equipment because it was
uncomfortable, while others misused it, thereby diminishing
their own protection. The Commission itself noted that
Gunite’s insurer found that its “management admitted it
was not enforcing its policy requiring respiratory protection
in areas where respirator use was deemed necessary,” using
16                                               No. 04-4017

that admission to justify a finding of willfulness on another
item not before this court.
   Second, Gunite contends that at the time of the cita-
tions, it had already planned and even begun to implement
the engineering controls that the Secretary agrees likely
would solve the problem for the mold line employees. Thus,
Gunite argues, it should not be liable. Indeed, the Secretary
took the planned engineering controls into account when
she classified the citation based on the overexposure of the
mold station workers as serious rather than willful. See
United States v. Ladish Malting Co., 135 F.3d 484, 490 (7th
Cir. 1998) (discussing the four levels of violations of occupa-
tional safety regulations, which control levels of penalty).
Nevertheless, the planned fixes are not an escape from
liability. The problem with airborne silica in the Gunite
foundry was hardly new in 1998. Even the Commission
found that Gunite did not act in good faith in addressing
the problem, noting that Gunite “did little in the way of
controlling dust problems through the use of housekeeping
measures,” failed to maintain its ventilation and ducts, and
moved at a “glacial pace” in solving the engineering prob-
lems. The problem of excess silica in the air resulting from
the shaking of the conveyor belts was clear in 1989; the fact
that Gunite was still in the process of addressing the
problem a decade later cannot and should not absolve the
foundry of liability. Future solutions simply cannot erase
past violations, any more than they can retroactively
protect the foundry’s employees’ lungs.
  For these reasons, we REVERSE the Commission’s decision
and REMAND the case with instructions to affirm the four
contested citations.
No. 04-4017                                         17

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—3-24-06
