Docket No. 563

FULTON INSTRUMENT COMPANY

OSHRC Docket No. 563

Occupational Safety and Health Review Commission

November 20, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with Chairman Moran's order directing review of a decision of Judge Ben D. Worcester. Judge Worcester concluded that Respondent had committed a non-serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) by violating the standard published at 29 C.F.R. 1910.93(b)(2). He assessed a penalty of $300.

We reviewed the entire record and find no prejudicial error therein.

Accordingly, it is ORDERED that the Judge's decision be and the same is hereby affirmed.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case because the Judge properly applied the standard. The abatement date prescribed by him is appropriate for the reasons he has assigned.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: In my opinion, 29 C.F.R. § 1910.93(b)(2) is not applicable to this respondent. In addition, the citation is invalid because it was not duly issued.

The Judge found that the respondent had failed to comply with the provisions of the aforementioned standard [*2] concerning allowable concentrations of mercury in the air. That standard was promulgated under 29 U.S.C. § 655(a) which gave the Secretary of Labor authority to adopt certain standards for a period of two years from the effective date of the Act n1 without public scrutiny and without observing the procedural safeguards afforded by the Administrative Procedure Act, 5 U.S.C. § 553. n2 However, Congress limited the authority to promulgate interim standards to those which qualified as an "established Federal standard" or a "national consensus standard." 29 C.F.R. § 1910.93(b)(2) was promulgated under the latter classification.

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n1 Hereinafter referred to as interim standards.

n2 Staff of the Senate Comm. on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 146 (Comm. Print 1971).

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When compared with the detailed procedures provided in 29 U.S.C. § 655(b) for the promulgation of other standards, it is readily apparent that the authority of the [*3] Secretary to prescribe interim standards constitutes an extraordinary power. This extraordinary power is explained in Sentate Report 91-1282 n3 as follows:

The purpose of this procedure is to establish as rapidly as possible national occupational safety and health standards with which industry is familiar. These standards may not be as effective or as up-to-date as is desirable, but they will be useful for immediately providing a nationwide minimum level of health and safety.

Thus, Congress recognized the undesirable aspects inherent in the method provided for the adoption of interim standards. To counteract these weaknesses, the term "national consensus standard" was precisely defined in the Act.

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n3 Id.

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The definition of "national consensus standard" is contained in 29 U.S.C. § 652(9) where the term is defined to mean:

any occupational safety and health standard or modification thereof which (1), has been adopted and promulgated by a nationally recognized standards-producing organization under procedures [*4] whereby it can be determined by the Secretary that persons interested and affected by the scope or provision of the standard have reached substantial agreement on its adoption . . . . (Emphasis added).

In amplification of this definition, Senator Saxbe stated in debate that a national consensus standard is a "consensus on standards of health, in plants and out, that are readily acceptable all over." n4

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n4 Id. at 336.

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When extraordinary powers are exercised by the Secretary, the statutory limitations on those powers must be strictly construed. See Florida Peach Growers Association v. United States Department of Labor, 489 F.2d 120 (5th Cit. 1974). Consequently, an interim standard does not apply to persons whose interests were not represented in its development because it is not a consensus standard as to them. Its provisions can apply to them only if it is promulgated as an occupational safety and health standard pursuant to 29 U.S.C. § 655(b).

The regulation at issue here has as its [*5] source the American National Standards Institute (ANSI) standard Z37.8-1943. Examination of the list of those who participated in its development and adoption reveals an absence of representatives from the thermometer industry, the industry of which the respondent is a part. n5 Thermometer manufacturers are certainly people interested and affected by regulations governing allowable mercury concentrations in the air. Since they were not afforded the opportunity to be heard on the matter, the provisions of 29 C.F.R. § 1910.93(b)(2) cannot be applicable to this respondent under § 655(a).

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n5 American National Standards Institute, Z37.8-1943 (R 1971), Allowable Concentration of Mercury 3-4 (1943).

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When a governmental agency performs an essentially legislative task by informal rulemaking, rules of general application must be formulated "in a manner calculated to negate the dangers of arbitrariness and irrationality." Automotive Parts & Accessories Association, Inc. v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 1968); accord [*6] Associated Industries of New York State, Inc. v. United States Department of Labor, 487 F.2d 342, 354 (2d Cir. 1973). The manner of formulation of the instant standard does not negate those dangers. To the contrary, the problems created by application of a standard to parties who did not participate in the adoption of the standard are well illustrated in this case. A controversy exists as to whether ANSI standard Z37.8-1943 contemplated determining maximum allowable concentrations of mercury on the basis of an acceptable ceiling concentration or a time weighted average concentration. If the thermometer industry had been represented in the establishment of ANSI standard Z37.8-1943, that question might have been clarified.

In addition, there was a delay of 20 days between the inspection and the issuance of the citation. That delay is more than six times greater than the 72 hours Congress authorized for this process. Since no exceptional circumstances are shown in the record, the citation should be vacated for the reasons I expressed in Secretary v. Plastering, Incorporated, 8 OSAHRC 150 (1974), and Secretary v. Advanced Air Conditioning, Inc., 7 OSAHRC 736 [*7] (1974).

[The Judge's decision referred to herein follows]

WORCESTER, JUDGE: This proceeding arises as a result of Notice of Contest filed by the Fulton Instrument Company, Inc., the Respondent, on February 25, 1972, pursuant to the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, (84 Stat. 1590 et. seq., 29 U.S.C. 651 et. seq. ) hereinafter called the Act.

The Citation dated February 14, 1972, alleged that the Respondent at a workplace under its ownership, operation, and control at 7 Morrill Place, Fulton, New York, failed to provide adequate ventilation in its manufacturing facilities where mercury vapor was present sufficient to prevent hazardous exposure to its employees in violation of 29 CFR 1910.93(b), a serious violation; and failure to provide personal protective equipment to prevent skin contact with mercury in violation of 29 CFR 1910.132(a), a non-serious violation. The Secretary proposed that the Respondent be assessed a penalty of $700.00 for the serious violation. No penalty was recommended for failure to furnish protective equipment nor did the Respondent contest the non-serious Citation. It has become a final order of the Secretary. [*8]

In his Complaint filed March 7, 1972, the Secretary alleged in paragraph IV, as amended, that:

On January 25, at respondent corporation's facility at 7 Morrill Place, Fulton, New York, the respondent corporation violated the standards at 29 C.F.R. 1910.93(b)(2) designated in the citation as 29 C.F.R. 1910.93(b) Table G-2 and promulgated pursuant to section 6 of the Act, in that the respondent corporation allowed employees' exposure to mercury to exceed .10mg/m3, that acceptable ceiling concentration limit as listed in Table G-2, at various times during an eight (8) hour shift.

In its answer to the amended Complaint the Respondent admitted that on January 25, 1972, between 1:00 p.m. and 3:50 p.m. there were concentrations of mercury in its plant at 7 Morrill Place, Fulton, New York, which exceeded .10mg/m3, but denied that this constituted a violation of the standards at 29 CFR 1910.93(b)(2).

The matter came on for hearing in Syracuse, New York, on August 3, 1972, with the Secretary presenting his evidence on August 3rd and 4th. The trial was adjourned until September 13, 1972, when the Respondent submitted evidence in support of its denial of the allegation that there [*9] was a serious violation as defined in Section 17 of the Act.

It was stipulated by the parties through counsel that:

1. The Respondent, Fulton Instrument Company, Inc., is a division of Badger Laboratories, Inc., a Wisconsin corporation; that it is engaged in the manufacture, sale and distribution of clinical thermometers; has its principal office at 7 Morrill Place in Fulton, New York, and that Badger Laboratories, Inc., has its principal office in Jackson, Wisconsin. Fulton Instrument Company, Inc., a New York corporation, was merged into Badger Laboratories, Inc., effective March 31, 1972. The Respondent's facility in Fulton, New York, began operations in September 1970.

2. During the calendar year 1971 the Respondent received from points located outside the State of New York, goods valued in excess of $50,000 and shipped to points located outside the State of New York goods valued in excess of $50,000.

3. The Respondent was in control of the facility at 7 Morrill Place, Fulton, New York, at all times relevant to this proceeding.

4. There is only one competing thermometer manufacturer in the same general area where the Respondent is located. This competitor is of a size [*10] at least double that of the Respondent in the calendar year 1971.

5. There is no record of previous violations of Occupational Safety and Health Act of 1970.

6. During the period January 1, 1972, to August 1, 1972, the Respondent's average number of plant employees on a daily basis was between 130 and 140.

7. Documents required to be displayed by the Act and the Rules were posted on February 16, 1972, and July 7, 1972, in the cafeteria and outside the fill room.

8. The Citations and Notice of Proposed Penalty were properly served upon the Respondent.

9. As of March 31, 1972, the net worth of Respondent was $162,136.00. During the fiscal year ending March 31, 1972, Respondent had net sales of $1,323,574.00 and a pre-tax loss of $90,200.00.

Witnesses appearing for the Secretary included Harold P. Pauly, a former safety engineer in private industry and for more than a year a Compliance Officer, United States Department of Labor; and Morton Lippman, Ph.D., Associate Professor of Environmental Medicine, New York University School of Medicine, an industrial hygienist. The Respondent offered Charles Castro, general manager of Fulton Instrument Company, Inc., Fulton, [*11] New York; Joseph Meyers, plant manager at Fulton Instrument Company, Inc., since July 1971; George P. Van, Vice President of Will Ross, Inc., of Milwaukee, Wisconsin, the parent corporation, of which Fulton Instrument Company is a subsidiary; and Leonard L. Wolfson, a director of Will Ross, Inc., in charge of quality assurance. He was previously a research scientist and bacteriologist with the State of Illinois and in private industry. He possesses a Master of Science degree in micro-biology with a minor in chemistry from the University of Chicago; and Leonard Goldwater, M.D.

Dr. Goldwater, now of Chapel Hill, North Garolina, where he is affiliated with the medical schools of Duke University and the University of North Carolina, in addition to a Doctor of Medicine degree awarded him by New York University in 1928, has a Bachelor of Arts degree from the University of Michigan, a Doctor of Medical Science degree from New York University and a Master of Science in Public Health from Columbia University. He is Board-certified internist with more than 30 years experience as an instructor and full-time professor of Medicine at Columbia University. For the last 13 years he was a professor [*12] of Industrial and Occupational Medicine. He is an internationally known authority on the various aspects of toxicology and has published at least thirty articles dealing with mercury.

The Respondent contends that the issues to be disposed of, in the alternative are:

1. Whether the Citation should be dismissed because:

(a) The inspection was not validly conducted?

(b) The standard is not valid?

2. Whether the Citation should be modified because:

(a) There was no serious violation?

(b) The penalty is not justified?

The argument that the inspection was not validly conducted is based upon the provisions of the Secretary's Compliance Operations Manual (January 19, 1972). Chapter VI A.3.c. explains the procedure for handling complaints from persons other than employees or their representatives. The Respondent argues that because this instruction provides that complaints by an employer against his competitor are not valid complaints, the Citation in the instant case is invalid because it was made by a person who was not an employee.

This argument must be rejected. First, the Manual, as is stated on its title page, is [*13] only a guideline for implementing the Act. Second, Chapter VI A.3.c. is a guideline which is applicable only in those situations where an inspection is made solely because of a complaint made pursuant to the provisions of Section 8(f) of the Act and 29 CFR 1903.11. It does not follow that no inspection can be made unless there is a complaint by an employee. Section 8(a) of the Act as implemented by 29 CFR 1903.3 and Chapter V of the Compliance Operations Manual authorizes the Secretary's Compliance Safety and Health Officers to, upon presenting appropriate credentials, enter an employer's work site at any reasonable time. If the Respondent's contention were to be accepted, then any employer who suspected that his conscious and willful violation of the Act was about to be discovered could protect himself from enforcement by arranging for a non-employee to make a complaint to the Secretary.

The Respondent has also cited the case of Secretary of Labor v. Aluminum Coil Anodizing, Citation and proposed penalty where [*14] the complaint was made by someone other than an employee. That case is clearly distinguishable from the instant use.

There the inspection resulted from a complaint which the Respondent said was made by a non-employee outside party falsely claiming to be an employee. The Judge said, after summarizing the evidence, that the Area Director's action in suppressing the non-employee complainant's identity made the inspection illegal. There are no such facts in the record of the instant case.

An inspection can be made at any reasonable time by representatives of the Secretary by merely presenting appropriate credentials and asking for permission to enter the workplace. The Respondent's contention that the inspection was not validly conducted under the law is not supported by the statute or the regulations and should be, and hereby is rejected.

The additional argument that, for economic reasons, the Complaint should be dismissed likewise is not well taken. This argument could be made to Congress in an effort to amend the law but there is no basis upon which to hold that a valid inspection cannot be carried out because it might put an employer's competitive position in jeopardy. The [*15] purpose of the Act is to provide a safe and healthful workplace for employees. If an employer is incapable of accomplishing this without jeopardizing his solvency, the employer shall be required to suffer the consequences.

The Respondent has asserted in issue 1(b) that the Citation should be dismissed because the standard is not valid. If this contention should be sustained, issues 2(b) and (c) alleging, respectively, that the penalty is not justified and the proposed abatements is not proper would become moot.

The Respondent contends that the subject standard is not a national consensus standard because persons interested and affected by it have not reached substantial agreement upon its adoption; that the standard adopted by the American National Standards Institute (ANSI) for mercury vapor was derived from Paul Neal's monograph on "Mercurialism and Its Control in the Felt Hat Industry," published in Public Health Bulletin No. 1963 in 1941; that according to Dr. Goldwater, the study was based chiefly on data which was not only incomplete but which was gathered through the use of instruments which are now considered inaccurate (Tr. 373-376); and, that it is not [*16] clear from Neal's publication whether he was using a time-weighted average or a maximum acceptable ceiling method (Tr. 381). For that reason, there is some question as to whether there was agreement that the mercury standard adopted should be a maximum acceptable ceiling standard or a time weighted average standard. The Respondent points out that the maximum acceptable ceiling standard (Respondent's Exhibit No. 13) which was approved on January 6, 1943, was revised by ANSI in October 1971. At that time ANSI issued a proposed new standard for allowable concentrations of mercury in which a time-weighted average for mercury vapor levels was adopted. In commenting on the use of a maximum acceptable ceiling value for mercury ANSI stated:

There are insufficient data on which to base an acceptible (sic) ceiling value.

The Respondent contends that this comment shows that there could not have been substantial agreement among the members of this group which is a basic prerequisite to the adoption of a national consensus standard and that it follows, that the acceptable ceiling value standard is invalid.

The Secretary was directed by the Congress (See Section 6(a) of the Act) to promulgate [*17] as occupational safety and health standards any national consensus standard or any established Federal standard. In the event of conflict among any such standards the Secretary was authorized to promulgate the standards which assured the greatest protection of the safety and health of affected employees. The term "national consensus standard" is defined in Section 3(9) of the Act as any occupational safety and health standard . . . which: (1) has been adopted and promulgated by a nationally recognized standards-producing organization under procedure whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary after consultation with appropriate federal agencies.

The introductory remarks to the American Standards Association publication "Allowable Concentration of Mercury" (1943) states that during the previous decade it became apparent that a central standardizing group should coordinate all the [*18] available information and establish acceptable allowable concentrations. It was also stated that this standard reflected information obtained "from all authoritative published data and the experience of the members of the committee." The members of the Committee included sixteen physicians, six from private industry, six from the U.S. Government, two from State Government, and two from private associations; fourteen engineers, two from industry, three from the U.S. Government, four from private associations, five from insurance companies; nine industrial hygienists, two from the U.S. Government, three from State Governments, four from private associations; and five chemists, three U.S. Government, one private associations, one insurance company.

It could hardly be said that the conclusions of a majority of such a learned group could not be a reliable consensus. The fact that the maximum allowable concentration standard fixed referred only to Paul A. Neal's publication does not mean that all of these distinguished engineers, scientists, and physicians closed their minds to all other sources of information. This is merely a bibliographical reference showing that their conclusion [*19] was that Neal's postulation of the maximum safe concentration was a reasonable one, when evaluated on the basis of their own combined prior knowledge.

The fact that American National Standards Institute revised its publication on October 6, 1971, (Respondent's Exhibit R-14) does not mean that the same or similar persons considering the subject in 1971 totally rejected previous conclusions. It has been said that more than one-half the scientists who have ever lived are still living. This is because man's knowledge has increased in giant leaps and bounds in recent years. No doubt the 1943 standards were the best that could be devised on the basis of the knowledge and means of testing available at that time. It was not until 1971 that it was possible to update the standards on the basis of later acquired knowledge and methods.

Dr. Goldwater testified that the threshold limit value is a number which has been applied to certain substances in the chemical and industrial environment to be used as an indication of whether or not accepted industrial hygiene practices are being followed. It is not, as some persons think, a clear cut indicator of the cut-off point between what [*20] would make people ill and what would not make them ill. It is used by design engineers in designing ventilation systems. These TLV's are set by a professional society made of governmental industrial hygienists both federal and state, plus other individuals outside of Government circles who are associate members because of their experience. This society has a TLV committee on committees which examines evidence available about various chemicals. It may be experimental, derived from tests on animals, or it may be industrial experience. On the basis of the data gathered from the various sources, mechanisms for modifying and changing standards from time to time are devised.

Dr. Goldwater said that the American Conference of Government Industrial Hygienists has recently reduced the threshold limit based on an 8 hour time weighted average from .1 milligram per cubic meter of air to .05 milligrams. ANSI has also changed its concept for a ceiling value to a time weighted average. Dr. Goldwater explained why it was necessary to revise the standards. He said that at the time the Neal studies were done, his findings were considered to be comprehensive and useful, but when reevaluated [*21] in the light of present day knowledge and analytical procedures and other refinements the publication has become of historical interest but no great scientific value. This is because the analytical procedures available at that time were so crude that they would be totally unacceptable at the present time. There were contradictory points in the report itself which were due to unreliable analytical data. He mentioned, as an example, that one of the tests used was the selenium sulfide method which consisted of taking a piece of paper which had been impregnated with selenium sulfide and allowing a stream of air to pass over it after which the concentration was measured by visually observing the change in color over a fixed period of time. Mercury vapor will turn selenium sulfide black. The amount of darkening after exposure to mercury vapor was compared with standard charts by visual methods. At that time this was acceptable procedure.

The contention that unanimity of opinions is a prerequisite to adoption of a national consensus standard is specious. An opinion is a belief which is established by the intellectual process after consideration of facts and arguments derived [*22] from sources outside one's own experience. A consensus results when various minds consider facts and reach a conclusion; it is defined as an opinion held by most, a general agreement. There does not have to be a unanimous opinion to create a consensus.

The Respondent also argues that the standard is invalid because of being vague. Again it must be noted that differences in opinions of recognized experts does not support this contention. It only shows that the subject is complex. The standard itself has been clearly expressed in terms satisfactory to a consensus of qualified observers. Neither of the expert witnesses who testified had any difficulty understanding it. The standard is not vague.

The acceptable ceiling limit of exposure during an 8-hour shift to concentrations of the material listed in Table 2(2) promulgated by the Secretary as a part of General Industry Standards on August 13, 1971, 36 F.R. 157; August 14, 1971, F.R. 158; September 9, 1971, 36 F.R. 175; and December 7, 1971, 36 F.R. 235; designated as Section 1910.93(c)(2), Title 29 Code of Federal Regulations, is a validly adopted consensus standard under the provisions Section 3(9) of the Act.

III

The Fulton, [*23] New York facility known as the Fulton Instrument Company, Inc., began production in September 1970. Its principal product is clinical thermometers. On January 20, 1972, L.P. Pauly, an industrial hygienist employed by the Secretary of Labor, presented his credentials to the Respondent's manager, Charles A. Castro, and informed him that the Secretary had received a complaint that their employees were being exposed to excessive mercury vapors and physical contact with mercury. He said that he would like to make an inspection. He was supplied with a sampling of the daily mercury vapor level record kept by the company for the month of November 1971 (Exhibit C-1). Pauly also used an instrument identified as an MSA portable model pump to test concentrations of vapors in the air. This device has a vial in it and a tube which is extended from the testing device to the lapel of an employee and pinned there as close to the breathing zone as possible. In this manner the measurable quantities of toxic substance in the air in the vicinity of the worker can be determined. Pauly testified that on January 25, 1972, five days after his first inspection he used this testing device [*24] in this manner at 21 separate locations in the Respondent's Fulton plant and that the results were recorded on a floor plan of the plant showing the location of the test and the reading at each location (Exhibit C-2). It was subsequently stipulated that the readings on the document identified as C-2 represented readings in milligrams of mercury per cubic meter. Pauly testified that he based his recommendation that the Respondent be charged with a serious violation on the reading recorded by the Respondent's own employees in November 1971. Pauly also had suggested a multi-step abatement program. They were to (1) provide immediate and temporary engineering controls and, (2) to submit a time table setting forth the means and methods they would use to permanently abate the hazard. Pauly said that the Fulton Plant was a very modern well kept one; that the general manager, Castro, had been very cordial and cooperative, and that the general level of housekeeping and cleanliness compared to other plants he had visited in the course of his one year as a Compliance Officer was very good.

Fulton's general manager, Castro, testified that construction of the unit began in November 1969. [*25] The buildings were occupied in April 1970. He had had 42 years of experience in thermometer manufacturing, so he knew that there was a chance that employees would be exposed to mercury vapors. For that reason he began taking test readings in the plant several months before production began in September 1970. From June 1970 until January 1971 readings were consistently less than .1 milligram per cubic meter (Tr. 113). However, the State of New York, U.S. Department of Labor, Division of Industrial Safety Service (referred to as DISS in the record) inspected their plant in November 1970. As a result they subsequently charged the Respondent with alleged failure to adequately ventilate the working area on three occasions. They were unsuccessful in securing approval of any plans for modifications submitted to DISS. Finally, on January 20, 1972, they were inspected by the Secretary which resulted in the Citation now in issue.

Having found both that the standard was validly promulgated and that the inspection upon which the citation was issued was validly conducted, the Judge comes now to consider the case on its merits. The first contention to be disposed of is the [*26] Respondent's assertion that the alleged violation was not a serious one.

The purpose of the ANSI standard, as set forth in the October 6, 1971, publication, appears to have been taken almost word for word from the purpose clause, (paragraph 1.2) of the 1943 standard. It was to specify the acceptable concentrations of mercury for guidance in establishing control procedures for the protection of the health of workers.

The general properties of mercury were described by Dr. Goldwater. He said that it is the only common metal which is liquid at ordinary temperatures. It is mobile, silvery white. It does not tarnish in the air. It is used in the manufacture of chemicals and scientific instruments; in the preparation of dental and other amalgams, in battery manufacturing, in the electrical and explosive industries, and in the manufacture of chlorine. It also may be encountered in significant amounts in mining, scientific, medical and testing laboratories and "thermometer manufacture." Mercury is unique among metals in existing as a vapor at ordinary temperatures in concentrations sufficiently high to be of health concern. For that reason the good housekeeping and prompt efficient [*27] clean up of spills is important.

Mercury may enter the body by inhalation, ingestion, or absorption through the skin. The rate of absorption through the intact skin has been shown to be very slow and is presently thought to be of relatively little importance. Principal effects of chronic exposure to mercury and its compounds involve the central nervous system.

The documentary evidence included State of New York Workmen's Compensation documents pertaining to a claim by a former employee, James F. Rehor. They indicated that he had been found to be entitled benefits due to mercury poisoning, but no evidence to support such a conclusion was mentioned.

The Respondent produced Rehor as a witness. It was revealed through his testimony that he had gone to his personal physician with a variety of complaints and told him that he had been exposed to large amounts of mercury which he thought was in his system. He was treated for obesity and nervousness. He lost about 22 pounds after being put on a diet and tranquilizers. He said that the doctor told him that the symptoms of mercury poisoning were hardening of the gums "which I didn't have" and tremors "which I didn't have." [*28]

Dr. Goldwater testified that in his twenty years as a full-time professor at Columbia he was especially concerned with occupational diseases. His major sub-specialty was mercury exposure. The signs a physician looks for if he has a patient who has been exposed to mercury vapors are nervousness, loss of appetite, a strange feeling in the mouth, insomnia and bad dreams. A sign is an objective symptom that can be verified by observation or tests. For example, a high temperature would verify a subjective complaint of feeling hot. Signs of mercury poisoning would include tremor, shakiness, particularly of the outstretched hands, and inflammation of the gums. If those signs were present then it would be necessary to ascertain whether the patient had been subjected to a "substantial" exposure to mercury vapor. It is necessary, in such situations to ascertain if, in fact, there has been exposure. But mere exposure is not enough. There can be exposure and absorption without poisoning. There cannot be poisoning without both exposure and absorption. Nervousness, insomnia, tremors and other signs which he had mentioned would be seen if there were absorption and mercury had entered [*29] the blood stream.

Dr. Goldwater, who had heard Rehor testify, said that the signs of mercury poisoning were not present. Drowsiness and a tired feeling, which Rehor complained of, were more likely due to the tranquilizers and diet. Insomnia would be a symptom of poisoning, drowsiness is just the opposite. There was no tremor, no inflammation of the gums.

The evidence fails to show that any of the Respondent's employees, including Rehor, suffered any ill effects from whatever exposure to mercury vapor they sustained. The likelihood that serious illness or death might be anticipated is clearly ruled out on the basis of the opinions of the two expert witnesses, Lippman and Goldwater.

The four criteria specified by Section 17(j) of the Act for determining the amount of the penalty are (1) the size of the business of the employer being charged, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the history of previous violations. The Respondent, through the support of its parent corporation has been able to withstand losses of over $400,000 in the brief period of its history. This shows that the amount of the proposed penalty in the instant [*30] case is not excessive.

There is no history of previous Federal violations but the Respondent has been cited several times by the State of New York officials having job safety responsibilities. The Respondent's reaction to the citations by the State of New York and to the Citation by the Secretary have a bearing both upon good faith and gravity.

The general manager Castro, and other officials of the Respondent showed a sincere and continuing effort since before the plant got fully into production to control the levels of mercury vapors in its plant so that its employees would not be adversely affected. Tests of the air in the plant were made before production. When the tester proved to be inadequate, a more sophisticated type was secured. Housekeeping methods were improved. They purchased a more effective device for picking up spilled mercury. They improved the method of disposing of mercury waste. Company officials from the parent office in Milwaukee made numerous trips to Fulton in connection with improvement of the ventilation system before the Secretary's inspection. Several engineering firms were consulted. Plans recommended were submitted to the State on three different [*31] occasions unsuccessfully, so the Respondent has proceeded to authorize the expenditure of up to $150,000 to permanently abate the toxicity without waiting for State approval. Temporary measures utilized for modification of the ventilation system have, since April 1972, brought the mercury vapors level down to within acceptable limits.

The evidence has established that the Respondent was in violation of the standards for many months after its plant began production. There is no basis upon which to conclude that its employees could have sustained serious illness during this time but neither could the violation have been considered de minimis within the meaning of Section 9(a) of the Act. A de minims violation is one which is said to have no direct or immediate relationship to safety or health.

In the instant case the evidence shows that the Respondent knew early in the operation of the plant that the concentration of mercury vapor was too high. At this point, the Respondent had the choice of putting the plant into full production and risking excess exposure of its employees while methods of reducing the concentration of mercury vapor were perfected; or stopping production [*32] until the problems was solved. The Respondent chose the former course. The Respondent put material gain ahead of the health of its employees. Such conduct is repugnant to the clearly expressed intentions of the Congress and cannot be condoned. There must be some penalty assessed. Considering the fact that the Respondent has shown a desire to protect its employees and the minimal nature of the exposure in that no employees were shown to have suffered any adverse effects, a penalty of $300.00 is reasonable.

The sole remaining issue is the matter of abatement of the two violations.

The Secretary, recommended that the Respondent institute a multi-step abatement as follows:

1. February 25, 1972 (Step I).

A. Provide immediate temporary engineering controls to reduce mercury vapor levels below maximum permissible concentration of .10 mg/m3.

B. On February 25, 1972, reinspection and resampling will be performed to determine whether the temporary controls are effective.

2. March 10, 1972 (Step II)

A. Submit a timetable plan for U.S. Department of Labor approval showing the permanent engineering controls for maintaining mercury vapors below .10 mg/m3.

B. Upon [*33] approval, the plan will be followed. At the end of each 30 day period submit a progress report to the U.S. Department of Labor (see item D).

C. Submit plan to: Mr. William J. Dreeland, Area Director, U.S. Department of Labor, Room 203, Midtown Plaza, 700 E. Water Street, Syracuse, New York 13210.

D. Specify in the plan a date for reinspection and resampling by the U.S. Department of Labor.

The Respondent has argued for modification of the abatement as follows:

1. a. Provide, immediately, temporary engineering controls so that mercury vapor levels do not exceed the maximum permissible concentration of .1 milligrams per cubic meter.

b. If such temporary engineering controls do not reduce mercury vapor levels so that they do not exceed .1 milligrams per cubic meter, provide such administrative controls and or protective devices which will provide employees with the same degree of safety that they would have enjoyed had the mercury vapor levels never exceeded .1 milligrams per cubic meter.

2. a. Within 30 days of the date of the final decision in this case, submit a timetable plan to the Area Director, Occupational Safety and Health Administration, U.S. Department of Labor, [*34] showing the permanent engineering controls that would be installed no later than one year after the date of the final decision in this case so that mercury vapor levels will not exceed .1 milligrams per cubic meter at the end of such period.

b. Commence installation of items called for in the plant on a time-phased basis. At the end of each 30-day period submit a progress report to the Area Director.

c. As soon as the mercury vapor levels do not exceed .1 milligrams per cubic meter using permanent engineering controls, the installation of further permanent engineering controls is optional.

The Respondent, by footnote, pointed out that the proposed abatement in the Secretary's Citation requires the mercury vapor levels to be brought below .1 milligrams per cubic meter which is at variance with the regulation. It provides that vapor levels shall not exceed .1 milligrams per cubic meter. See 29 CFR 1910.93.

The Secretary quite correctly points out that he, and he alone, has jurisdiction of an application for a variance. Where an employer shows a good faith effort to comply with the abatement requirements of a citation and the abatement has not been completed because [*35] of factors beyond his reasonable control, the Secretary may issue an order affirming or modifying the abatement requirements of such Citation. This is accomplished after a hearing before one of the administrative law judges in the Department of Labor, not by the Review Commission. See Section 6(a) and 10(c) of the Act.

However, it is conceded that there is jurisdiction of the issue of whether the time fixed for abatement is reasonable. Careful consideration of the Secretary's proposed abatement methods compared with the Respondent's proposed modification makes it clear that there is little difference in the two plans other than the time for completion and the erroneous proposed abatement recommendation where it is stated that mercury vapor levels should be "below" .10mg/m3 rather than "should not exceed" .10mg/m3 as stated in 29 CFR 1910.93(b)(2).

In the case at bar the Respondent has shown a good faith effort to abate. There is substantial proof that quite expensive and time consuming plant modifications would be required to meet the standard. It would not serve the ends of justice to re-schedule a hearing and require counsel for both parties and their witnesses to travel [*36] great distances to present the same evidence which has already been submitted just to extend time for abatement. There is a precedent for granting additional time for abatement in such circumstances. See Secretary v. Permaneer Corp., OSHRC No. 947, para. 15121, CCH Employment Safety and Health Guide.

The Secretary's proposed findings of fact numbered 6, 15, 16, and 24, and conclusions of law numbered 6, 8, 12, 13, 14, and 15 are specifically rejected and disapproved. The Respondent's proposed findings of fact numbered 11, 15, 16, 23, 25, 29, 30, and 31, and proposed conclusions of law numbered 1, 2, 3, 4, 9, 13, 15, 19, 21, 22, and 23 are specifically rejected and disapproved. The remainder of the parties' proposed findings and conclusions which, in numerous instances are either irrelevant or unnecessary, will not be specifically adopted but, have been considered in reaching the findings and conclusions set forth below:

FINDINGS OF FACT

1. The Respondent is now and was at all times relevant to the issues in the instant case a division of Badger Laboratories, Inc., a Wisconsin corporation, engaged in the manufacture, sale and distribution of clinical thermometers [*37] from its plant located in Fulton, New York.

2. The Respondent had control and dominion over the plant equipment, building, and personnel at its Fulton, New York, plant at all times material to the issues herein.

3. During the calendar year 1971 the Respondent received from points outside of the State of New York goods valued in excess of $50,000 and shipped goods to points located outside the State of New York valued in excess of $50,000.

4. During the period of January 1, 1972, to August 1, 1972, the Respondent had approximately 130 to 140 employees. Its net worth as of March 31, 1972, was $162,136.

5. There is no history of previous violations of the Occupational Safety and Health Act of 1970.

6. There is a history of citations by the State of New York under its safety regulations which, although irrelevant to the issues in the instant case, revealed that the Respondent showed good faith in its attempts to control mercury vapor in its plant.

7. During the period between August 27, 1971, and January 25, 1972, the Respondent's employees at Fulton, New York, were subjected to concentrations of mercury greater than .1 milligrams per cubic meter of air as was shown by readings [*38] recorded daily by the Respondent's employees taken in the area around the various stations in its plant.

8. Temporary administrative and engineering measures instituted by the Respondent after January 25, 1972, succeeded in reducing mercury vapor levels at the Respondent's Fulton, New York plant to levels below .1 milligrams of mercury per cubic meter of air.

9. There is no evidence that the witness Rehor or any other employee of the Respondent sustained any adverse affects from exposure to whatever amount of mercury vapor was present in its Fulton plant after it went into production in September 1970. It was the opinion of the expert witnesses that the amount of mercury vapor level present in the Respondent's plant between April 1970 and September 1972 would have been unlikely to cause mercury poisoning. Dr. Goldwater explained that the toxic effect of mercury vapor results from absorption of the element into the blood stream; that the type of mercury used in the Respondent's Fulton plant, metallic mercury, unlike compounds of mercury and other elements, cannot readily be absorbed and that absence of evidence of absorption is a sufficient basis upon which to conclude [*39] that little or no adverse effects upon the exposed individual will occur.

10. Beginning in the fall of 1971, when four different heating, ventilating, and air conditioning specialists were consulted, until May 18, 1972, when the firm of Galson and Galson, engineering consultants, was retained, Respondent was engaged in a continuing effort to reduce mercury vapor to acceptable levels. The cost of the extensive permanent heating, ventilating and air conditioning changes suggested by Galson and Galson was estimated to be from $100,000 to $150,000. The Respondent has since in September 11, 1972, by authorization of the Board of Directors of Will Ross Incorporated authorized a capital expenditure to implement these recommendations.

11. There is evidence of record showing that Respondent neither could have nor did abate the violation through temporary engineering controls within the time fixed by this Citation. It could not be done through administrative controls alone. Engineering controls require so much lead time for planning and plant modification that full abatement could not have been accomplished by February 25, 1972.

CONCLUSIONS OF LAW

1. The Respondent is, and was at [*40] all times relevant to the issues herein, engaged in a business affecting commerce within the meaning of Section 3(3) of the Occupational Safety and Health Act of 1970; and is and was at all times material herein an employer under the provisions of the Section 3(5) of the Act and, as such, subject to its provisions under Sections 4(a) and 5(a) of the Act and the standards promulgated under the authority of Section 6, thus giving this Commission jurisdiction of the Respondent and the subject matter.

2. The Secretary sustained the burden of proof of the allegation of a violation of 29 CFR 1910.132(a) for which no penalty was proposed, but this allegation has not been contested. It has become a final order of the Secretary and was not in issue in this proceeding.

3. The Secretary has sustained the burden of proof that the Respondent violated the standards set forth in 29 CFR 1910.93(b)(2) Table G-2(2) as alleged in the Citation for Serious Violation paragraph IV of the Complaint in that its employees were exposed to mercury vapors in excess of 1. milligrams per cubic meter of air on January 25, 1972. Section 1910.93(b) is a national consensus standard within the meaning [*41] of Section 6(a) of the Act.

4. Section 1910.93(b) insofar as it pertains to acceptable concentrations of metallic mercury vapor, is not constitutionally unenforceable because of being too vague. The standard was adopted by qualified experts who relied upon the best known methods known at the time their conclusions were reached.

5. The Secretary failed to sustain the burden of proof that there was a substantial probability that serious physical harm or death to its employees might result from the exposure they sustained. The violation was not serious in nature within the meaning of Section 17(k) of the Act.

6. Applying the four elements to be considered in assessing a penalty specified in Section 17(j), it is considered that the sum of $300.00 would be reasonable.

7. The Respondent has shown good cause for extending the proposed abatement dates Step I and II, February 25, 1972, and March 10, 1972, respectively, to 30 days from the date of this decision.

ORDER

Upon consideration of the above set forth findings and conclusions and the record as a whole it is hereby ORDERED that:

1. The Secretary's Citation for violation of 29 CFR 1910.93(b)(2) Table G-2(2) be affirmed. [*42]

2. The degree of gravity of the violation upon which the Citation was based be reduced from a serious violation under the provisions of Section 17(a) of the Act to a violation not of a serious nature under the provisions of Section 17(k) of the Act.

3. The Respondent be assessed a penalty of $300.00.

4. The Secretary's proposed two step abatement date be modified so that the Respondent shall have 30 days from the date of this decision within which to correct the violation.