UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 77–1811
GAF CORPORATION,
Respondent.

March 31, 1981

DECISION

Before BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge Ben Worcester is before the Commission for review under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). Respondent, GAF Corporation (‘GAF’), was issued a citation alleging a serious violation of the Act for noncompliance with the air contaminant standards at 29 C.F.R. §§ 1910.1000(a)(2) and (e).[1] Concluding that GAF workers were exposed to levels of silver compounds in excess of the permissible time weighted average, the judge affirmed an ‘other than serious violation’ of section 1910.1000(a)(2). The judge vacated that portion of the citation alleging noncompliance with section 1910.1000(e). The Secretary of Labor (‘Secretary’) filed a petition for review of the judge’s decision, and Commissioner Cleary directed review on the following issues raised by the petition:

1) Whether the administrative law judge erred in concluding that the respondent committed an ‘other than serious’ violation of the Act by its failure to comply with 29 CFR § 1910.1000(a)(2) and in assessing a $1.00 penalty therefor.

2) Whether the judge erred in vacating the item of the citation alleging a serious violation of the Act due to noncompliance with 29 CFR § 1910.1000(e).

For the reasons that follow, we conclude that Respondent committed a serious violation of the Act by failing to comply with sections 1910.1000(a)(2) and (e).

GAF operated a photo-chemical manufacturing facility in Glens Falls, New York from 1972 through June 1978.[2] The plant, which employed approximately 47 workers, was primarily engaged in the production of silver nitrate and silver oxide crystals. In response to a complaint regarding skin discoloration of employees at this facility, an OSHA inspection was commenced on March 31, 1977 and, after periodic visits by compliance officers, completed on May 18, 1977.

According to undisputed evidence, the inspection revealed that GAF workers at the Glens Falls plant were exposed to airborne concentrations of silver nitrate and silver oxide in excess of the OSHA time weighted average of 0.01mg/M³. The air samples[3] taken by the compliance officers established worker exposure levels to those air contaminants that ranged from just approximately 2 times the permissible exposure limit to 37 times the allowable level.[4] Respirators provided by GAF and used by the workers were inappropriate for airborne silver contaminants. The respirators were equipped with cartridges that were designed for other substances[5] and were not approved by the National Institute for Occupational Safety and Health (‘NIOSH’) for use with regard to airborne silver compounds. Consequently, the respirators provided no protection against the inhalation of the airborne silver nitrate and silver oxide.

No engineering controls were in operation at this facility to reduce the levels of airborne silver. Rather, an extant exhaust or ventilation system was in a state of disrepair during the month long inspection. Kristine Kalijian, the compliance officer in charge of the Glens Falls inspection, was the only witness to testify about engineering controls. She stated that Respondent could have taken a number of steps to reduce the levels of airborne silver including the repair and operation of the existing ventilation system. Also suggested were the installation of local exhaust ventilation, the use of a closed system for transporting the chemicals used in the silver nitrate production process, and the use of covers on trays in which silver emitting substances were carried.

In 1974, the director of occupational safety at GAF conducted a study of the occupational safety and health hazards posed by silver. As a result of that study, GAF concluded that it was dealing with a substance that caused discoloration of the skin, eyes, and mucous membranes but that there was no systemic effect on the individual.[6] GAF also concluded that no special medical examination could be given to determine if there were any biological effects from exposure to silver.

The medical evidence in support of the Secretary’s citation was presented by Dr. Kenneth Rosenman of the Environmental Science Laboratory, Mount Sinai School of Medicine of the City University of New York. Dr. Rosenman conducted a clinical examination of 30 GAF workers exposed to silver nitrate and silver oxide at the Glens Falls plant.[7] The study was prompted by the results of an earlier examination at Mount Sinai of 4 GAF Glens Falls workers. The 4 workers initially examined exhibited liver problems, kidney disorders, hypertension, as well as argyria,[8] and the more comprehensive study of the 30 workers was commenced to investigate whether the physical dysfunctions uncovered in the 4 workers were related to the occupational exposure to silver.[9]

A majority of the GAF Glens Falls workers examined complained of eye and both upper (nose and throat) and lower (coughing, wheezing, and chest tightness) respiratory tract irritations. Eighteen of the workers experienced nose bleeds while working in the plant, and the study associated the bleeding with the effect of the corrosive properties of silver nitrate and silver oxide. Varying numbers of the workers complained of nausea (7 workers), headaches (9 workers), nervousness (10 workers), and fatigue (9 workers). The study, however, did not relate these symptoms to duration of employment or the presence of silver in the blood. Ten workers complained of abdominal pain. At the hearing, Dr. Rosenman testified that there existed a ‘significant association’ between the abdominal pain and the presence of silver in the blood. Ten workers also complained of decreased night vision. However, ophthalmological findings revealed no change in visual function attributable to silver deposition.[10]

The Rosenman study reported no evidence of restrictive pulmonary disorder. Although two employees had mild chronic bronchitis and there was evidence of minor pulmonary obstructions in seven GAF workers, the study notes that the obstructions were minimal and not associated with years of employment. Dr. Rosenman concluded that ‘none of the workers had evidence of restrictive pulmonary disease.’ Further, chest x-rays of nine of the workers yielded no indication of work-related respiratory problems.[11]

The blood test yielded similar negative results. Although 12 of the workers had measurable quantities of silver in their blood, the test showed that only the presence of abnormal levels of alkaline phosphatase was related to the duration of employment and the presence of silver. The report concluded that ‘complete blood counts were normal in all individuals’ except for one.[12]

The study further concluded that none of the workers examined evidenced renal tubular damage or dysfunction. One of the workers with generalized argyria had ‘mild renal insufficiency’ but the report notes that it was of an unknown etiology, and the worker did not demonstrate ‘tubular dysfunction.’ Five workers, four of whom had argyria, had creatinine clearance less than ten percent of that predicted (age-specific). ^12aHowever, no conclusion could be drawn about any relationship between decline in the kidney function and the exposure to silver. The study noted that, although two of the men had protein in their urine, ‘quantitative protein measurements were not abnormal.’ The report added that ‘additional studies will have to be done to further investigate possible kidney damage.’

Six of the workers were diagnosed as having generalized argyria. The bluish-black skin discoloration was more marked in the light exposed areas of the face, neck, arms, and hands. In two other workers, discoloration of the skin was noted only in the areas of the face and neck. Twenty of the thirty workers examined were identified as having argyrosis.

Judge Worcester considered the medical evidence and concluded that the effect of exposure to silver is ‘essentially cosmetic in nature.’ He held that although the Secretary had sustained his burden of proving the exposure of GAF workers exceeded permissible limits for silver, the Secretary failed to establish that this would cause ‘serious injury or death.’ The judge found an other than serious violation of 29 C.F.R. § 1910.1000(a)(2) and assessed a penalty of $1.00 in view of the closure of the plant. The judge offered no explanation for his vacation of the 29 C.F.R. § 1910.1000(e) item.

We will first address the issue of whether the judge erred in vacating the portion of the citation alleging noncompliance with section 1910.1000(e).[13] There is no dispute that levels of airborne silver compounds in the Glens Falls plant exceeded the limit permitted by section 1910.1000(a)(2). Also uncontroverted, Respondent’s employees wore respirators equipped with filters incapable of preventing the inhalation of the ambient silver compounds, and consequently, those employees were exposed to the toxic substances. To the extent that Respondent failed to implement any measures to reduce employee exposure to within permissible limits, noncompliance with section 1910.1000(e) has been established.[14]

However, the Secretary asserts that the gravamen of Respondent’s noncompliance with section 1910.1000(e) was the failure to implement engineering controls. Section 1910.1000(e) contemplates that exposure to excessive levels of toxic substances will be abated by engineering or administrative controls and that personal protective equipment will be used only in the event that such controls are not feasible or fail to reduce levels to the permissible limit. It is the Secretary’s burden to establish that controls are technologically and economically feasible. A control is technologically feasible if it can be adapted to the employer’s operation and is capable of producing a significant reduction in exposure to the particular toxic substance, in this case silver compounds. See Samson Paper Bag Co., 80 OSAHRC ——, 8 BNA OSHC 1515, 1980 CCH OSHD ¶24,555 (No. 76–222, 1980).

The record before us fails to indicate whether repair of the ventilation system and implementation of the other measures suggested by the compliance officer would result in a significant reduction in the excessive levels of airborne silver compounds. Because the record is devoid of evidence tending to establish the amount of reduction that could be expected from the controls suggested by the compliance officer, we conclude that the Secretary has failed to sustain his burden of proving technological feasibility.[15] This finding should not be interpreted as a condonation of Respondent’s failure to take the minimal step of maintaining its existing ventilation system. Furthermore, as we have already noted, inasmuch as section 1910.1000(e) does require that personal protective equipment be used in the absence of feasible engineering controls, and inasmuch as Respondent’s employees inhaled toxic silver compounds as a result of inappropriate respirators, we find that Respondent has failed to comply with the cited standard.

III

We now address the issue of whether Respondent’s noncompliance with sections 1910.1000(a)(2) and (e) was a serious violation of the Act.[16]

The Secretary contends that the judge failed to adequately consider the medical evidence presented and argues that ‘severe, grotesque, and irreversible skin discoloration’ is a serious hazard within the meaning of section 17(k) of the Act. The Secretary notes that generalized argyria was found and clearly observable in 6 of the 30 workers examined by Dr. Rosenman; also noted is that 20 of the workers were found to have argyrosis. The Secretary adds that the first evidence of discoloration was detected in a worker with only 5 years’ service at the Glens Falls plant. Even assuming the benign nature of argyria, the Secretary asserts that the type of grotesque, permanent disfigurement sustained by GAF’s workers constitutes a serious violation of the Act. The Secretary also asserts that argyria is a total physical disruption of the skin’s normal state and the psychological[17] and social dysfunctions that may result from such a permanent affliction are readily apparent. These facts alone, the Secretary submits, are sufficient to find a serious violation.

The Secretary further argues that for a serious violation to exist there need be only a possibility, not a substantial probability, of an accident or illness arising from the violative conditions. The ‘substantial probability’ test of section 17(k) refers only to the likelihood of death or serious physical harm resulting from the accident or illness.[18] The Secretary concludes that the possibility of ‘illness’ resulting from the conditions in the plant was not only apparent but proven by the actual disabilities suffered by the workers.

According to the Secretary, Respondent’s safety director was aware of the health hazards associated with airborne silver, particularly argyria and kidney dysfunction, at least 3 years prior to this inspection and that the available medical literature contained documentation of silver-induced impaired night vision. The Secretary contends that in spite of its knowledge of the potential health hazards GAF took no steps to assess the degree of risk in the plant or to adequately protect its employees. Citing Borg-Warner Corp., 78 OSAHRC 18/A2, 6 BNA OSHC 1393, 1978 CCH OSHD ¶22,555 (No. 10757, 1978), the Secretary argues that, absent the institution of some investigative or precautionary measures, GAF cannot now successfully deny knowledge of the risk to its employees occasioned by its own neglect.

GAF argues that the Secretary has not sustained the burden of proving a serious violation. Respondent’s first contention is that the Secretary has not shown that the employees suffered or would suffer serious bodily harm. To buttress its reliance on the requirement of bodily injury or harm, GAF cites the definition of ‘serious physical harm’ in the Field Operations Manual for OSHA compliance officers. The portion of the manual cited by Respondent defines ‘serious physical harm’ as:

Permanent, prolonged, or temporary impairment of the body in which part of the body is made functionally useless or is substantially reduced in efficiency on or off the job . . .

Illness that could shorten life or significantly reduce physical or mental efficiency by inhibiting the normal functions of a part of the body . . . [Emphasis in original].

Field Operations Manual, ch. VIII, para. B. GAF argues that there is no proof in the record that exposure to silver will render any portion of the body functionally useless, substantially reduced in efficiency, or that it will shorten life. Rather, Respondent notes that Dr. Rosenman’s study confirms the essentially cosmetic effect of exposure to silver.

GAF further argues that the Secretary failed to establish the requisite knowledge of the violative condition by the Respondent. Apparently relying on Brennan v. OSHRC (Raymond Hendrix d/b/a Alsea Lumber Company), 511 F.2d 1139 (9th Cir. 1975), GAF contends that its efforts to discover whether a hazard existed[19] negate any constructive knowledge. GAF also notes that its facility at Glens Falls previously had been inspected several times by OSHA personnel, and no violations relating to air quality were reported.[20] Citing the decision in Tobin Packing Co. 77 OSAHRC 109/C11, 5 BNA OSHC 1685, 1976–77 CCH OSHD ¶20,953 (No. 15858, 1976 ALJ), GAF submits that an employer’s reliance on previous official inspections is a basis for a finding that a violation is not serious in that the reliance eliminates the requisite element of knowledge.

Finally, GAF asserts that it was the dearth of information on the biological effects of exposure to silver dust that prompted the Dr. Rosenman study. Respondent concludes that this paucity of information together with its own findings, that revealed no systemic implications to the exposure to silver, establishes that Respondent did not know and could not have known of the presence of a serious violation as a result of an exposure to silver.

We note at the outset that the clinical study before us fails to establish any systemic implications to silver exposure. Indeed, Dr. Rosenman testified that ‘no marked influence on health was demonstrated’ by his study. Moreover, although silver has been identified as a nephrotoxin,[21] and exposure to it has been linked as a possible cause of idiopathic thrombocytopenia,[22] mild chronic bronchitis,[23] decreased night vision,[24] and it is a potent heavy metal inhibitor of enzymes,[25] Dr. Rosenman noted that the biologically deleterious effects of chronic deposition of silver are not well documented. Argyria appears to be the main pathologic effect of the exposure to silver and its accumulation in the body. The study, however, supports ‘the benign nature of argyria.’

Although no systemic implications were established in this case, the evidence of the 6 workers afflicted with argyria is sufficient to find a serious violation of the Act. The photographic exhibits of the GAF workers afflicted with argyria and argyrosis are compelling. Although there is testimony that the photos are rather limited in their ability to accurately portray the degree to which the workers’ skin and eyes are discolored, we are struck by the clearly grotesque darkening of the conjunctiva of the workers’ eyes and the sharp and unmistakably bluish hue of at least one worker’s complexion. We reject the notion that a worker’s substantial sacrifice of his or her appearance is anything less than serious. We conclude that the permanent disfigurement of a worker’s complexion as a result of an occupational exposure is a serious violation of the Act.[26] Permanent disfigurement is that which impairs or injures the beauty, symmetry, or appearance of a person or which renders unsightly, misshapen, imperfect, or deformed. 99 C.J.S. Workmen’s Compensation § 199 (1958) (‘C.J.S.’). The permanent, irreversible staining of the GAF workers’ skin caused by the deposition of silver and the increase in melanin production results in an alteration of the skin’s pigmentation sufficient to require a finding of a serious violation.[27]

GAF’s reliance on the definition of ‘serious physical harm’ contained in the Secretary’s Field Operation Manual is misplaced. As we held in FMC Corp., 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977–78 CCH OSHD ¶22,060 (No. 13155, 1977), the manual contains only guidelines for the execution of enforcement operations, and the guidelines are plainly for internal application to promote efficiency. They lack the force and effect of law and do not accord procedural or substantive rights to individuals.

We also reject GAF’s claim that it lacked the requisite knowledge—either actual or constructive—of the hazardous conditions necessary to find a serious violation of this Act. GAF errs in relying on Tobin Packing Co. for support for its contention that an employer’s reliance on previous official inspections is a basis for finding a violation other than serious. Tobin Packing Co. is an unreviewed judge’s decision and as such does not constitute binding precedent upon the Commission. It does not necessarily express the view of the Commission nor is it necessarily declarative of Commission policy. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975–76 CCH OSHD ¶20, 387 (No. 4090, 1976), appeal withdrawn, No. 76–4070 (2d Cir. May 17, 1976). Further the Secretary’s failure to cite at previous inspections for a violation of section 1910.1000(a)(2) does not grant GAF a permanent immunity from compliance with that regulation, International Harvester Co. v. OSHRC, 628 F.2d 982, n.3 (7th Cir. 1980), and does not preclude a charge for a serious violation that results from a later inspection. The Act requires every employer to furnish to each of his employees employment and a place of employment which are free from recognized hazards and to comply with the occupational safety and health standards promulgated under the Act. Section 5(a)(1) and (2) of the Act, 29 U.S.C. § 654(a)(1) and (2). This duty exists regardless of whether the employer’s worksite is inspected or the scope of an inspection is limited. See Carnation Co., 78 OSARHC 54/D9, 6 BNA OSHC 1730, 1978 CCH OSHD ¶22,837 (No. 8165, 1978), appeal docketed, No. 78–2894 (9th Cir. August 18, 1978). Compliance with the Act is a continuing obligation. Hence, we hold that GAF cannot rely on earlier safety and health inspections and the failure of the Secretary to issue citations as a result of those inspections to deny knowledge of the existence of a hazard cited by the Secretary at a later inspection.[28]

We find that GAF’s actions in this matter belie its assertion that it lacked the knowledge necessary for a finding of a serious violation. GAF knew that overexposure to airborne silver resulted in ‘the discoloration of the skin, eyes, and mucous membrane’ yet elected to ignore the data that suggested its employees were exposed to a health hazard. Apparently, GAF considered skin discoloration an innocuous reaction to silver and consequently made no effort to limit the exposure levels in its plant. After making the decision that the permanent and irreversible discoloration of its employees’ skin was only a cosmetic reaction to silver, GAF now argues before the Commission that it lacked the knowledge of the hazardous condition. We are not persuaded. The testimony establishes that the argyria was ‘readily observable’ on some of the workers and that the argyrosis was even more obvious. Considering this testimony and the compelling photographic exhibits, we cannot conclude that GAF was without knowledge of the violative conditions. Moreover, in 1973, 1974, and 1975, GAF conducted surveys to measure the presence of airborne silver and other air contaminants at its plant in Glens Falls.[29] The data from these surveys revealed both permissible levels of airborne silver and some levels above the allowable limit. GAF dismissed the results of the surveys, claiming that they were unreliable because the surveys were inadequate. Regardless of the erratic nature of the surveys, however, they did indicate that potentially impermissible levels of airborne silver existed within the plant. At that point it was incumbent upon GAF to investigate further. An employer with notice that violative conditions may exist must make reasonable efforts to ascertain if, in fact, the conditions are violative of the Act. Borg-Warner Corp., supra. We further note that GAF admitted that its technicians had the capability to perform time weighted average surveys, yet there is no evidence that these efforts were made. Rather, GAF apparently chose to rely on the results of the erratic surveys that indicated permissible levels of silver. Accordingly, we conclude that the violation was serious.

We modify the judge’s decision and affirm a serious violation of the Act in that GAF has failed to comply with the standards at 29 C.F.R. § 1910.1000(a)(2) and 29 C.F.R. § 1910.1000(e).

We have considered the criteria for penalty assessment set forth in section 17(j) of the Act, 29 U.S.C. § 666(i).[30] Because argyria inflicts a significant personal injury on the GAF workers in the form of permanent irreversible disfigurement, the gravity of this violation is high. Moreover, Respondent’s failure to implement protective measures in the face of an obvious health hazard evinces bad faith. Accordingly, we conclude that $1000 is an appropriate penalty.[31] SO ORDERED

FOR THE COMMISSION:

RAY H. DARLING, JR.,

EXECUTIVE SECRETARY

DATED: MAR 31, 1981

BARNAKO, Acting Chairman, Dissenting in Part:

I agree with my colleagues for the reasons they state that Respondent failed to comply with 29 C.F.R. §§ 1910.1000(a)(2) and (e) and that respondent knew or could have known with the exercise of reasonable diligence of the violative conditions. However, I do not join in their conclusion that exposure of Respondent’s employees to excessive concentrations of silver compounds was shown to present a substantial probability of serious physical harm within the meaning of section 17(k) of the Act, 29 U.S.C. § 666(j).[32] Therefore, I would affirm the violation as other than serious in nature.

In concluding that the exposure of Respondent’s employees can result in serious physical harm my colleagues conclude that permanent discoloration of the skin and eyes itself constitutes serious physical harm.[33] They advance no reasons to support this conclusion except to declare that an employee’s ‘substantial sacrifice of appearance’ cannot be considered anything less than serious and that permanent discoloration results in alteration of the skin sufficient to warrant finding a serious violation.[34] These conclusory statements by my colleagues do not support their finding that the violation is serious within the meaning of the Act.

The record contains no evidence to show that the exposure to excessive levels of silver compounds has caused or is likely to cause any loss or disruption of tissue or any other symptom which indicates an adverse effect on the functioning of the skin or associated cellular structure. As my colleagues themselves concede, the evidence shows only a change in color of the skin and eyes as the result of the deposition of particles of silver and an increased amount of melanin, a pigment normally present in the skin. The presence of silver particles and greater than normal quantities of melanin is not shown to have any effect other than darkening of the eyes and imparting of bluish tinge to the skin. Indeed, the Secretary’s own expert, Rosenman, testified and his report states that the discoloration, argyria, is benign in nature and, in particular, did not cause any loss of vision to Respondent’s employees.

Disfigurement which is not accompanied by any damage to tissue or impairment of body function cannot be considered serious injury within the meaning of 29 U.S.C. § 666(j)[35] unless it can be said that the statute recognizes the social and psychological effects of disfigurement or other substantial deterioration in an employee’s appearance. This conclusion necessarily follows from the fact that absent tissue or functional damage negative alterations in an employee’s physical appearance have no ill effects other than those reflected in the employee’s mental state and social acceptance. The statute, however, uses the term ‘serious physical harm’ (emphasis added). In my opinion, to conclude that intangible psychological and societal factors may be considered in determining whether a violation is serious under the Act would be to strain the plain meaning of 29 U.S.C. § 666(j).[36] In any event, even assuming that the Act may reasonably be construed to include such factors, I note, as do my colleagues, that the Secretary adduced no evidence to support his contention that exposure to excessive concentrations of silver compounds will cause psychological damage or societal dysfunctions for the exposed employees.

However, I am not unmindful of the apparent severity of the discoloration. Furthermore, I agree with my colleagues that an alteration in physical appearance of the magnitude present here should have put Respondent on notice to determine the actual levels of silver concentrations to which its employees were exposed or to take other appropriate measures to protect its employees, particularly since Respondent was aware that the symptoms exhibited by its employees resulted from exposure to silver compounds. Accordingly, while I do not consider the violation serious within the meaning of 29 U.S.C. § 666(j), I join in my colleagues’ conclusion that a penalty of $1000 is warranted based on the gravity of the violation and Respondent’s lack of good faith.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 77–1811
GAF CORPORATION,
Respondent.

FINAL ORDER DATE: February 7, 1979

APPEARANCES:

James Magenheimer, Esq. of New York, New York for Complainant

Algird White, Esq. of Albany, New York for Respondent

DECISION

Worcester, Judge

On March 31, 1977, pursuant to the provisions of 29 U.S.C. section 657 (section 6, The Occupational Safety and Health Act of 1970, 29 U.S.C. section 651 et seq., hereinafter called the Act), the complainant, Secretary of Labor, began an inspection of GAF’s facility for the production of silver nitrate and silver oxide crystals in Glen Falls, New York, which resulted in the issuance of a citation because of alleged overexposure of employees to airborne silver compounds and failure to utilize feasible engineering and administrative controls to eliminate this hazard in violation of 29 CFR sections 1910.1000(a)(2) and 1910.1000(e) respectively. The citation was described as one in which there is substantial probability of death or serious physical harm. A penalty of $320 was suggested.

After GAF filed a notice of contest of the citation and the matter was assigned for trial a petition by the Secretary for interlocutory appeal delayed trial on the merits until October 10, 1978. In the meantime, as of June 6, 1978, GAF permanently closed the shop involved thus permanently abating any alleged hazard.

The Secretary’s compliance officer testified that she believed after reading technical literature that there was a possibility of kidney damage and arteriosclerotic changes. Some employees told her that they had defective night vision, but there is no credible evidence to support this complaint. She conceded that she had not found any reliable professional opinion which supported her conclusions. (Tr. 1, p. 137).

The Secretary’s other witness, Dr. Rosenman, a specialist in occupational medicine who, after the inspection, had performed tests on 30 GAF employees from Glen Falls, concluded that although it is known that when there is exposure to silver it can be deposited throughout the connective tissue of the body, it has no marked influence on health. (Tr. II, p. 257). Some employees claimed that they had diminished night vision, but Dr. Rosenman said that the examination and tests performed on four employees did not support this claim (Tr. II, p. 265). The effect of exposure is essentially cosmetic in nature (Tr. II, p. 244).

At the conclusion of the trial GAF moved to dismiss and, in the alternative, to decrease the gravity of violation from serious to other than serious. The Respondent’s motion to dismiss is denied. Its motion to reduce the type of violations alleged to have been committed to other than serious, one not involving serious injury or death, is granted.

The Secretary sustained the burden of proof that the exposure of GAF’s employees exceeded the permissible limits specified by the table under 29 CFR section 1000 as alleged in the complaint, but since the Secretary failed to show that this would cause serious injury or death a penalty for serious violation is inappropriate. In view of the closure of this manufacturing plant and resultant permanent abatement of the hazard it is considered, under the provisions of 29 CFR section 666(i), that a penalty of $1.00 is appropriate.

ORDER

It is therefore hereby ordered that the citation for violation of 29 CFR 1910.1000(e) be vacated; that the citation for violation of 29 CFR 1910.1000(a)(2) be affirmed as a violation other than serious and that a penalty of $1.00 be assessed.

BEN D. WORCESTER

Judge, OSHRC

Dated: January 8, 1979

Boston, Massachusetts

[1] The cited standards read:

§ 1910.1000 AIR CONTAMINANTS

An employee’s exposure to any material listed in Table Z–1, Z–2, or Z–3 of this section shall be limited in accordance with the requirements of the following paragraphs of this section.

(a) Table Z–1:

(2) Other Materials—8-hour time weighted averages. An employee’s exposure to any material in Table Z–1, the name of which is not preceded by ‘C’, in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average given for that material in the table.

(e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve full compliance, protective equipment or any other protective measure shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section. Any equipment and/or technical measures used for this purpose must be approved for each particular use by a competent industrial hygienist or other technically qualified person. Whenever respirators are used, their use shall comply with § 1910.134.

Table Z–1

p.p.m.

mg./M^3B

Substance

Silver, metal

and soluble compounds

0.01

[2] The plant was closed by the Respondent on June 6, 1978, and there is no evidence that the facility has been reopened by this employer or a successor in interest.

[3] The compliance officers took 39 air samples using 8 GAF employees.

[4] In 1973, 1974, and 1975 GAF conducted air quality surveys to assess the presence of air contaminants in its Glens Falls plant. The surveys revealed levels of airborne silver both above and below the permissible levels. The testimony reveals that GAF dismissed the results of the survey because it was not satisfied with the manner in which the surveys had been conducted. GAF asserts that the survey included only spot samples and did not include the time weighted averages of exposure for the workers. In 1977, GAF contracted with an outside firm for a more thorough survey of the plant’s air quality. Results of that survey were not available at the time of the hearing.

[5] The cartridges in the respirators were designed to protect against exposure to organic vapors, chlorine, hydrochloric acid and sulfur dioxide.

[6] The compliance officer testified that she observed employees with discoloration of the face and mucous membrane of the eyes. She noted that discoloration ranged from tints of gray to ‘severe discoloration.’ She added that the discoloration was ‘readily observable.’ Photographs of GAF workers included as exhibits in the record depict the discoloration observed by the compliance officer.

[7] All then present and former employees were invited to participate in the examination. Twenty-nine employees then currently employed at the facility and one former worker were examined. The employees examined included both laboratory and office personnel. Sixteen of the workers had been employed at the GAF plant for five or more years and fourteen had been employed for shorter periods. The examination team included two ophthalmologists, three examining clinicians, one pulmonary physician, and three technicians. The examination consisted of physical examination, ophthalmological study, pulmonary function testing, chest x-rays for workers over forty, questionnaires and a number of laboratory tests (CBC, automatic blood chemical analyses, blood silver levels, occult blood in stool, urinalysis, and 24 hour urine collection for potassium, calcium, and creatinine).

[8] Argyria is a bluish-black discoloration of the skin, mucous membranes, and eyes that results from an accumulation of silver in the body and the increase in the presence of melanin, a dark brown or black pigment that normally occurs in the skin and hair, caused by the presence of silver. The discoloration is permanent and irreversible. It may be of two types: a generalized form; or localized form affecting the conjunctiva of the eye (argyrosis), nasal septum, or posterior pharynx. Generalized argyria may result from ingestion or inhalation of silver or silver compounds while localized argyria may be caused by penetration of the skin by fine particles of metallic silver.

[9] A report on the study is included in the record. Further elucidation is provided by Dr. Rosenman’s testimony at the hearing.

[10] Silver deposits were found in the eyes of the workers who complained of impaired night vision but no impairment of visual function was established. Dr. Rosenman noted that the ophthalmological tests given the workers were inadequate to detect impaired night vision. He added that although the tests did not document impaired night vision they also did not disprove the impairment of which the ten workers complained. Four of the ten workers were invited to a New York City clinic for more sophisticated eye tests. The results were not available for the hearing.

[11] Only the 9 workers over 40 years of age were given chest x-rays.

[12] Blood tests revealed that only one worker had an elevated creatinine level.

^12a Doctor Rosenman testified that creatinine clearance is an indicator of how much of the kidney is functioning.

[13] The Secretary suggests that Judge Worcester’s decision to vacate that item was prompted by evidence that GAF had closed its Glens Falls facility. There is no basis for us to confirm the Secretary’s surmise. However, we note, as the Secretary correctly submits, subsequent closure of a plant does not negate a violation that occurred while the plant was in operation. Cf. Whirlpool Corp., 80 OSHC 2248, 1980 CCH OSHD ¶ —— (No. 9224, 1980) (abatement following issuance of citation does not negate employer’s failure to comply with Act).

[14] In its brief on review, Respondent refers to face shields, safety glasses, protective gloves, rubberized leggings, and other equipment worn by its employees. Those measures however, are effective only to prevent physical contact with a substance and do not protect against the hazard of inhalation addressed by the cited standards.

[15] In view of this conclusion we need not address Respondent’s assertion that the compliance officer was of limited expertise and therefore not qualified to testify on the subject of engineering controls.

[16] Section 17(k) of the Act, 29 U.S.C. § 666(j), states in pertinent part:

. . . A serious violation shall be deemed to exist . . . if there is a substantial probability that death or serious physical harm could result from a condition which exists . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

Thus, the two elements that must be established to prove the existence of a serious violation are (1) the substantial probability of death or serious physical harm, and (2) the actual or constructive knowledge of the violative condition by the employer. See Niagara Mohawk Power Corp., 76 OSAHRC 36/A2, 7 BNA OSHC 1447, 1979 CCH OSHD ¶23,670 (No. 76–2414, 1979).

[17] The Secretary submits that the Act’s concern with the psychological dimension of occupational safety and health is specifically noted in section 2(b)(5) of the Act, 29 U.S.C. § 651(b)(5):

(b) The Congress declares it to be its purpose and policy . . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources—

(5) by providing for research in the field of occupational safety and health, including the psychological factors involved. . . .

[18] For support the Secretary cites Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127 (6th Cir. 1978); Shaw Construction Inc. v. OSHRC, 534 F.2d 1183 (5th Cir. 1976); Brennan v. Winters Battery Mfg., Co., 531 F.2d 317 (6th Cir. 1975), cert. denied, 425 U.S. 991 (1976); California Stevedore and Ballast Co. v. OSHRC, 517 F.2d 986 (9th Cir. 1975).

[19] Respondent argues, in essence, that although it dismissed the results of its air quality surveys because of their erratic quality, its decision to conduct such surveys demonstrated a reasonable and diligent good faith effort to ascertain the existence of a hazardous condition.

[20] Respondent notes that it was inspected in February 1973 by Federal OSHA officials and no citation was issued at that time. In February and March 1974, the New York State Department of Labor conducted inspections and no air quality violations were reported. GAF notes further that in 1975 an inspection and a reinspection were conducted by federal OSHA officials and again no citations for air quality violations were issued.

[21] See P.B. Beeson and W. McDermott, Cecil-Loeb Textbook of Medicine 1923 (13th ed. 1971). A nephrotoxin is substance harmful to the cells of the kidney.

[22] Id. Thrombocytopenia is a condition exhibiting an abnormally small number of platelets in the circulating blood.

[23] See E. Browning, Toxicology of Industrial Metals 262–267 (1961).

[24] See A. Hamilton and H.L. Hardy, Industrial Toxicology Publishing Sciences Group, Inc., 171–172 (3rd ed. 1974).

[25] See Petering, Pharmacology and Toxicology of Heavy Metals: Silver, 1 Parmac. Ther. A. 127–130 (1976).

[26] We take no position today with regard to the Secretary’s claims concerning the psychological dysfunctions that accompany permanent skin discoloration. We note that no evidence of psychological harm was submitted at the hearing.

[27] Commissioner Cottine concludes that the evidence of record establishes that the chronic abdominal pain, nose bleeds, and irritation of mucosal membranes are caused by the corrosive substances in silver nitrate and silver oxide at the higher concentrations at this worksite. Moreover, he concludes that these chronic ailments also support the finding of serious physical harm within the meaning of section 17(k) of the Act.

[28] We note that the testimony reveals that the inspections in 1975 by the New York State Department of Labor and by the Federal Occupational Safety and Health Administration did not involve a survey of the levels of airborne silver. Apparently they were safety inspections.

[29] These were the same years that OSHA—both state and federal agencies—inspections were conducted. See note 21 supra.

[30] Section 17(j) of the Act reads:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to 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.

[31] The Secretary has proposed a penalty of $320. It is well settled that the Commission may assess a penalty higher than that proposed by the Secretary. See Long Mfg., Co. v. OSHRC, 554 F.2d 903 (8th Cir. 1977); Clarkson Construction Co., v. OSHRC, 531 F.2d 451 (10th Cir. 1976); California Stevedores & Ballast Co. v. OSHRC, supra; Jensen Construction Co., 77 OSAHRC 201/C6, 6 BNA OSHC 1070, 1977–78 CCH OSHD ¶22,323 (No. 14300, 1977); Worcester Pressed Steel Co., 78 OSAHRC 89/A2, 3 BNA OSHC 1661, 1975–76 CCH OSHD ¶20,104 (No. 4237, 1975).

[32] This provision is quoted in pertinent part at note 16 of the lead opinion.

[33] There is no evidence to show a substantial probability that death could result from the conditions in Respondent’s plant, and neither the Secretary nor my colleagues consider the violation serious for this reason.

[34] My colleagues, however, do allude to the standards of recovery under workers’ compensation laws. It is well-settled that the principles applied for purposes of workers’ compensation are not controlling in adjudication under the Act. C.F. Burnett & Sons, Inc., 80 OSAHRC___, 9 BNA OSHC 1009, 1019, 1980 CCH OSHD 24,964 at 30,817 (No. 78–1103, 1980); Sugar Cane Growers Coop. of Florida, 76 OSAHRC 62/E4, 4 BNA OSHC 1320, 1976–77 CCH OSHD ¶20, 795 (No. 7673, 1976).

[35] I do not join in Commissioner Cottine’s conclusion that other effects of a chronic nature, specifically abdominal pain, nosebleeds, and irritation of the upper respiratory tract, also support the finding of serious physical harm within the meaning of section 666(j). While these ailments may be recurrent in exposed employees, there is no evidence from which we can determine their severity and, in particular, no evidence to show that they are debilitating in any way or are symptoms of or otherwise associated with any impairment of a body function.

[36] The Secretary’s reliance on the statement of statutory purpose set forth at 29 U.S.C. § 651(b)(5), quoted in note 17 of the lead opinion, is misplaced. The issue in this case is not whether psychological factors have significance but rather whether they are a sufficient basis alone on which to find a violation serious in nature. To answer the latter question in the negative is not to suggest that cosmetic or appearance factors are unimportant. See the discussion infra.