dissenting:
I respectfully dissent. The Commission’s decision that Trinity’s violation was not willful is based on its finding that Trinity did not disregard the hearing standards in good faith, but that Trinity interpreted the standards in good faith and believed, in light of that interpretation, that it was not in violation.
With this finding, the Commission correctly noted the controlling legal principle: good faith is sometimes relevant in determining whether an OSHA violation is willful. A violation is not willful, for example, “if the employer had a good faith opinion that the violation conformed to the requirement of the standard.” Donovan v. Mica Construction Co., 699 F.2d 431, 432 (8th Cir.1983). The obvious corollary to that rule, and the one the Commission applied in this case, is that a violation is not willful if an employer’s reasonable interpretation of a regulation creates a good faith belief that it was not in violation. General Motors Corp., Electro Motive Div., 14 O.S.H.C. 2064 (BNA) (Rev.Comm.1991); see also McLaughlin v. Union Oil Co. of California, 869 F.2d 1039, 1047 (7th Cir.1989) (“A violation is not willful when it is based on a nonfrivolous interpretation of OSHA’s regulations.”).
Although the court here asserts that this appeal “does not concern a situation where the employer argues that it had a good faith belief that its program complied with OSHA,” this is contrary to the findings of the Commission. Trinity’s good faith belief that it met OSHA’s requirements is, in fact, the key to this case. The Commission emphasized that the Secretary and Trinity had “an obvious difference, of opinion as to how to comply with the standards.” It-went on to explain that although Trinity knew its program did not comply literally with OSHA’s regulation, the only reason for the variance was Trinity’s good faith interpretation of the regulation, which led it to believe that under the circumstances literal compliance was not required to avoid a violation:
Trinity had a good-faith, though erroneous, belief that the only purpose of audiometric testing was to determine which employees had suffered a loss of hearing severe *1157enough to require hearing protection. Because its program required hearing protection before any loss occurred, Trinity believed that its program provided protection superior to that required by the Secretary, thereby rendering audiometric testing redundant and, therefore, unnecessary.
Thus the Commission found that Trinity had merely misinterpreted, not disregarded, the regulation.
In each case argued by the Secretary and relied on by the court, the employer either completely ignored the OSHA safety standards, Georgia Elec. Co. v. Marshall, 595 F.2d 309 (5th Cir.1979); Intercounty Construction Co. v. Occupational Safety & Health Rev. Comm., 522 F.2d 777 (4th Cir.1975), cert. denied, 423 U.S. 1072, 96 S.Ct. 854, 47 L.Ed.2d 82 (1976); Donovan v. Capital City Excavating Co., Inc., 712 F.2d 1008 (6th Cir.1983); F.X. Messina Const. Corp. v. Occupational Safety & Health Rev. Comm., 505 F.2d 701 (1st Cir.1974), implemented an alternative program that did not even remotely resemble those standards, Western Waterproofing Co. v. Marshall, 576 F.2d 139 (8th Cir.), cert. denied, 439 U.S. 965, 99 S.Ct. 452, 58 L.Ed.2d 423 (1978), or unilaterally decreed the standard invalid, RSR Corp. v. Brock, 764 F.2d 355, 363 (5th Cir.1985). None involved the misinterpretation of a regulation. Rather, in each case the employers simply disregarded the regulation at issue. Such behavior was properly deemed willful notwithstanding any good faith belief that the employees were safe.
Here, in contrast, Trinity carefully considered the regulations and attempted to provide what, in its view, was greater worker protection than OSHA required. Trinity’s goal was to create an environment where audiograms would be unnecessary because there was no high noise level exposure and therefore no need to monitor for hearing loss. Although this underestimates the purpose of the audiograms, it simply does not reflect a disregard of the regulations. The Commission recognized that not every knowing deviation from a regulation reflects disregard or indifference.
It is important to note that the Commission did not excuse Trinity’s noncompliance. It rejected Trinity’s argument that no citation was warranted, stating that an employer must comply fully with a regulation even if it believes it imposes an unnecessary requirement. The Commission merely determined that under the circumstances Trinity’s violation was “other than serious”, not willful.
Because the Commission applied the correct rule of law in this case, the only question this Court should consider is whether there is substantial evidence supporting the Commission’s conclusion that Trinity interpreted the regulation in good faith. In my view, the Commission’s decision is amply supported and should be affirmed.