“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77?1811 \u00a0 GAF CORPORATION, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0March 31, 1981DECISIONBefore BARNAKO, Acting Chairman; CLEARY and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Ben Worcester is before the Commission forreview under section 12(j), 29 U.S.C. ? 661(i), of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?). Respondent, GAFCorporation (?GAF?), was issued a citation alleging a serious violation of theAct for noncompliance with the air contaminant standards at 29 C.F.R. ??1910.1000(a)(2) and (e).[1] Concluding that GAFworkers were exposed to levels of silver compounds in excess of the permissibletime weighted average, the judge affirmed an ?other than serious violation? ofsection 1910.1000(a)(2). The judge vacated that portion of the citationalleging noncompliance with section 1910.1000(e). The Secretary of Labor(?Secretary?) filed a petition for review of the judge?s decision, andCommissioner Cleary directed review on the following issues raised by thepetition:1) Whether the administrative law judgeerred 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) andin assessing a $1.00 penalty therefor.?2) Whether the judge erred in vacating theitem of the citation alleging a serious violation of the Act due tononcompliance with 29 CFR ? 1910.1000(e).\u00a0??????????? Forthe reasons that follow, we conclude that Respondent committed a seriousviolation of the Act by failing to comply with sections 1910.1000(a)(2) and(e).IA.??????????? GAFoperated a photo-chemical manufacturing facility in Glens Falls, New York from1972 through June 1978.[2] The plant, which employedapproximately 47 workers, was primarily engaged in the production of silvernitrate and silver oxide crystals. In response to a complaint regarding skindiscoloration of employees at this facility, an OSHA inspection was commencedon March 31, 1977 and, after periodic visits by compliance officers, completedon May 18, 1977.??????????? Accordingto undisputed evidence, the inspection revealed that GAF workers at the GlensFalls plant were exposed to airborne concentrations of silver nitrate andsilver 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 thoseair contaminants that ranged from just approximately 2 times the permissibleexposure limit to 37 times the allowable level.[4] Respirators provided byGAF and used by the workers were inappropriate for airborne silvercontaminants. The respirators were equipped with cartridges that were designedfor other substances[5] and were not approved bythe National Institute for Occupational Safety and Health (?NIOSH?) for usewith regard to airborne silver compounds. Consequently, the respiratorsprovided no protection against the inhalation of the airborne silver nitrateand silver oxide.??????????? Noengineering controls were in operation at this facility to reduce the levels ofairborne silver. Rather, an extant exhaust or ventilation system was in a stateof disrepair during the month long inspection. Kristine Kalijian, thecompliance officer in charge of the Glens Falls inspection, was the onlywitness to testify about engineering controls. She stated that Respondent couldhave taken a number of steps to reduce the levels of airborne silver includingthe repair and operation of the existing ventilation system. Also suggestedwere the installation of local exhaust ventilation, the use of a closed systemfor transporting the chemicals used in the silver nitrate production process,and the use of covers on trays in which silver emitting substances were carried.B.??????????? In1974, the director of occupational safety at GAF conducted a study of theoccupational safety and health hazards posed by silver. As a result of thatstudy, GAF concluded that it was dealing with a substance that causeddiscoloration of the skin, eyes, and mucous membranes but that there was no systemiceffect on the individual.[6] GAF also concluded that nospecial medical examination could be given to determine if there were anybiological effects from exposure to silver.??????????? Themedical evidence in support of the Secretary?s citation was presented by Dr.Kenneth Rosenman of the Environmental Science Laboratory, Mount Sinai School ofMedicine of the City University of New York. Dr. Rosenman conducted a clinicalexamination of 30 GAF workers exposed to silver nitrate and silver oxide at theGlens Falls plant.[7]The study was prompted by the results of an earlier examination at Mount Sinaiof 4 GAF Glens Falls workers. The 4 workers initially examined exhibited liverproblems, kidney disorders, hypertension, as well as argyria,[8] and the more comprehensivestudy of the 30 workers was commenced to investigate whether the physicaldysfunctions uncovered in the 4 workers were related to the occupationalexposure to silver.[9]??????????? Amajority of the GAF Glens Falls workers examined complained of eye and bothupper (nose and throat) and lower (coughing, wheezing, and chest tightness)respiratory tract irritations. Eighteen of the workers experienced nose bleedswhile working in the plant, and the study associated the bleeding with theeffect of the corrosive properties of silver nitrate and silver oxide. Varyingnumbers of the workers complained of nausea (7 workers), headaches (9 workers),nervousness (10 workers), and fatigue (9 workers). The study, however, did notrelate these symptoms to duration of employment or the presence of silver inthe blood. Ten workers complained of abdominal pain. At the hearing, Dr.Rosenman testified that there existed a ?significant association? between theabdominal pain and the presence of silver in the blood. Ten workers alsocomplained of decreased night vision. However, ophthalmological findingsrevealed no change in visual function attributable to silver deposition.[10]??????????? TheRosenman study reported no evidence of restrictive pulmonary disorder. Althoughtwo employees had mild chronic bronchitis and there was evidence of minorpulmonary obstructions in seven GAF workers, the study notes that theobstructions were minimal and not associated with years of employment. Dr.Rosenman concluded that ?none of the workers had evidence of restrictivepulmonary disease.? Further, chest x-rays of nine of the workers yielded noindication of work-related respiratory problems.[11]??????????? Theblood test yielded similar negative results. Although 12 of the workers hadmeasurable quantities of silver in their blood, the test showed that only thepresence of abnormal levels of alkaline phosphatase was related to the durationof employment and the presence of silver. The report concluded that ?completeblood counts were normal in all individuals? except for one.[12]??????????? Thestudy further concluded that none of the workers examined evidenced renaltubular damage or dysfunction. One of the workers with generalized argyria had?mild renal insufficiency? but the report notes that it was of an unknownetiology, and the worker did not demonstrate ?tubular dysfunction.? Fiveworkers, four of whom had argyria, had creatinine clearance less than tenpercent of that predicted (age-specific). 12aHowever, no conclusioncould be drawn about any relationship between decline in the kidney functionand the exposure to silver. The study noted that, although two of the men hadprotein in their urine, ?quantitative protein measurements were not abnormal.?The report added that ?additional studies will have to be done to furtherinvestigate possible kidney damage.???????????? Sixof the workers were diagnosed as having generalized argyria. The bluish-blackskin discoloration was more marked in the light exposed areas of the face,neck, arms, and hands. In two other workers, discoloration of the skin wasnoted only in the areas of the face and neck. Twenty of the thirty workersexamined were identified as having argyrosis.C.??????????? JudgeWorcester considered the medical evidence and concluded that the effect of exposureto silver is ?essentially cosmetic in nature.? He held that although theSecretary had sustained his burden of proving the exposure of GAF workersexceeded permissible limits for silver, the Secretary failed to establish thatthis would cause ?serious injury or death.? The judge found an other thanserious 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 forhis vacation of the 29 C.F.R. ? 1910.1000(e) item.II??????????? Wewill first address the issue of whether the judge erred in vacating the portionof the citation alleging noncompliance with section 1910.1000(e).[13] There is no dispute thatlevels of airborne silver compounds in the Glens Falls plant exceeded the limitpermitted by section 1910.1000(a)(2). Also uncontroverted, Respondent?semployees wore respirators equipped with filters incapable of preventing theinhalation of the ambient silver compounds, and consequently, those employeeswere exposed to the toxic substances. To the extent that Respondent failed toimplement any measures to reduce employee exposure to within permissiblelimits, noncompliance with section 1910.1000(e) has been established.[14]??????????? However,the Secretary asserts that the gravamen of Respondent?s noncompliance withsection 1910.1000(e) was the failure to implement engineering controls. Section1910.1000(e) contemplates that exposure to excessive levels of toxic substanceswill be abated by engineering or administrative controls and that personalprotective equipment will be used only in the event that such controls are notfeasible or fail to reduce levels to the permissible limit. It is theSecretary?s burden to establish that controls are technologically andeconomically feasible. A control is technologically feasible if it can beadapted to the employer?s operation and is capable of producing a significantreduction in exposure to the particular toxic substance, in this case silvercompounds. See Samson Paper Bag Co.,80 OSAHRC ??, 8 BNA OSHC 1515, 1980 CCH OSHD ?24,555 (No. 76?222, 1980).??????????? Therecord before us fails to indicate whether repair of the ventilation system andimplementation of the other measures suggested by the compliance officer wouldresult in a significant reduction in the excessive levels of airborne silvercompounds. Because the record is devoid of evidence tending to establish theamount of reduction that could be expected from the controls suggested by thecompliance officer, we conclude that the Secretary has failed to sustain hisburden of proving technological feasibility.[15] This finding should notbe interpreted as a condonation of Respondent?s failure to take the minimalstep of maintaining its existing ventilation system. Furthermore, as we havealready noted, inasmuch as section 1910.1000(e) does require that personalprotective equipment be used in the absence of feasible engineering controls,and inasmuch as Respondent?s employees inhaled toxic silver compounds as aresult of inappropriate respirators, we find that Respondent has failed tocomply with the cited standard.IIIA.??????????? Wenow address the issue of whether Respondent?s noncompliance with sections1910.1000(a)(2) and (e) was a serious violation of the Act.[16]??????????? TheSecretary contends that the judge failed to adequately consider the medicalevidence presented and argues that ?severe, grotesque, and irreversible skindiscoloration? is a serious hazard within the meaning of section 17(k) of theAct. The Secretary notes that generalized argyria was found and clearlyobservable in 6 of the 30 workers examined by Dr. Rosenman; also noted is that20 of the workers were found to have argyrosis. The Secretary adds that thefirst 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 disfigurementsustained by GAF?s workers constitutes a serious violation of the Act. TheSecretary also asserts that argyria is a total physical disruption of theskin?s normal state and the psychological[17] and social dysfunctionsthat may result from such a permanent affliction are readily apparent. Thesefacts alone, the Secretary submits, are sufficient to find a serious violation.??????????? TheSecretary further argues that for a serious violation to exist there need beonly a possibility, not a substantial probability, of an accident or illnessarising from the violative conditions. The ?substantial probability? test ofsection 17(k) refers only to the likelihood of death or serious physical harmresulting from the accident or illness.[18] The Secretary concludesthat the possibility of ?illness? resulting from the conditions in the plantwas not only apparent but proven by the actual disabilities suffered by theworkers.??????????? Accordingto the Secretary, Respondent?s safety director was aware of the health hazardsassociated with airborne silver, particularly argyria and kidney dysfunction,at least 3 years prior to this inspection and that the available medicalliterature contained documentation of silver-induced impaired night vision. TheSecretary contends that in spite of its knowledge of the potential healthhazards GAF took no steps to assess the degree of risk in the plant or toadequately protect its employees. Citing Borg-WarnerCorp., 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 investigativeor precautionary measures, GAF cannot now successfully deny knowledge of therisk to its employees occasioned by its own neglect.B.??????????? GAFargues that the Secretary has not sustained the burden of proving a seriousviolation. Respondent?s first contention is that the Secretary has not shownthat the employees suffered or would suffer serious bodily harm. To buttressits reliance on the requirement of bodily injury or harm, GAF cites thedefinition of ?serious physical harm? in the Field Operations Manual for OSHAcompliance 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 ismade functionally useless or is substantially reduced in efficiency onor off the job . . .?Illness that couldshorten life or significantly reduce physical or mental efficiency by inhibitingthe normal functions of a part of the body . . . [Emphasis in original].\u00a0Field Operations Manual, ch. VIII, para. B. GAF arguesthat there is no proof in the record that exposure to silver will render anyportion of the body functionally useless, substantially reduced in efficiency,or that it will shorten life. Rather, Respondent notes that Dr. Rosenman?sstudy confirms the essentially cosmetic effect of exposure to silver.??????????? GAFfurther argues that the Secretary failed to establish the requisite knowledgeof the violative condition by the Respondent. Apparently relying on Brennan v. OSHRC (Raymond Hendrix d\/b\/aAlsea Lumber Company), 511 F.2d 1139 (9th Cir. 1975), GAF contends that itsefforts to discover whether a hazard existed[19] negate any constructiveknowledge. GAF also notes that its facility at Glens Falls previously had beeninspected several times by OSHA personnel, and no violations relating to airquality were reported.[20] Citing the decision in Tobin Packing Co. 77 OSAHRC 109\/C11, 5BNA OSHC 1685, 1976?77 CCH OSHD ?20,953 (No. 15858, 1976 ALJ), GAF submits thatan employer?s reliance on previous official inspections is a basis for afinding that a violation is not serious in that the reliance eliminates therequisite element of knowledge.??????????? Finally,GAF asserts that it was the dearth of information on the biological effects ofexposure to silver dust that prompted the Dr. Rosenman study. Respondentconcludes that this paucity of information together with its own findings, thatrevealed no systemic implications to the exposure to silver, establishes thatRespondent did not know and could not have known of the presence of a seriousviolation as a result of an exposure to silver.C.??????????? Wenote at the outset that the clinical study before us fails to establish anysystemic 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 hasbeen linked as a possible cause of idiopathic thrombocytopenia,[22] mild chronic bronchitis,[23] decreased night vision,[24] and it is a potent heavymetal inhibitor of enzymes,[25] Dr. Rosenman noted thatthe biologically deleterious effects of chronic deposition of silver are notwell documented. Argyria appears to be the main pathologic effect of theexposure to silver and its accumulation in the body. The study, however,supports ?the benign nature of argyria.???????????? Althoughno systemic implications were established in this case, the evidence of the 6workers afflicted with argyria is sufficient to find a serious violation of theAct. The photographic exhibits of the GAF workers afflicted with argyria andargyrosis are compelling. Although there is testimony that the photos arerather limited in their ability to accurately portray the degree to which theworkers? skin and eyes are discolored, we are struck by the clearly grotesquedarkening of the conjunctiva of the workers? eyes and the sharp andunmistakably bluish hue of at least one worker?s complexion. We reject thenotion that a worker?s substantial sacrifice of his or her appearance isanything less than serious. We conclude that the permanent disfigurement of aworker?s complexion as a result of an occupational exposure is a seriousviolation of the Act.[26] Permanent disfigurementis that which impairs or injures the beauty, symmetry, or appearance of aperson 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? skincaused by the deposition of silver and the increase in melanin productionresults in an alteration of the skin?s pigmentation sufficient to require a findingof a serious violation.[27]??????????? GAF?sreliance on the definition of ?serious physical harm? contained in theSecretary?s Field Operation Manual is misplaced. As we held in FMC Corp., 77 OSAHRC 153\/D4, 5 BNA OSHC1707, 1977?78 CCH OSHD ?22,060 (No. 13155, 1977), the manual contains onlyguidelines for the execution of enforcement operations, and the guidelines areplainly for internal application to promote efficiency. They lack the force andeffect of law and do not accord procedural or substantive rights toindividuals.??????????? Wealso reject GAF?s claim that it lacked the requisite knowledge?either actual orconstructive?of the hazardous conditions necessary to find a serious violationof this Act. GAF errs in relying on Tobin Packing Co. for support for itscontention that an employer?s reliance on previous official inspections is abasis for finding a violation other than serious. Tobin Packing Co. is anunreviewed judge?s decision and as such does not constitute binding precedent uponthe Commission. It does not necessarily express the view of the Commission noris it necessarily declarative of Commission policy. Leone Construction Co., 76 OSAHRC 12\/E6, 3 BNA OSHC 1979, 1975?76CCH OSHD ?20, 387 (No. 4090, 1976), appealwithdrawn, No. 76?4070 (2d Cir. May 17, 1976). Further the Secretary?sfailure to cite at previous inspections for a violation of section1910.1000(a)(2) does not grant GAF a permanent immunity from compliance withthat regulation, International HarvesterCo. v. OSHRC, 628 F.2d 982, n.3 (7th Cir. 1980), and does not preclude acharge for a serious violation that results from a later inspection. The Actrequires every employer to furnish to each of his employees employment and aplace of employment which are free from recognized hazards and to comply withthe occupational safety and health standards promulgated under the Act. Section5(a)(1) and (2) of the Act, 29 U.S.C. ? 654(a)(1) and (2). This duty existsregardless of whether the employer?s worksite is inspected or the scope of aninspection 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 theAct is a continuing obligation. Hence, we hold that GAF cannot rely on earliersafety and health inspections and the failure of the Secretary to issuecitations as a result of those inspections to deny knowledge of the existenceof a hazard cited by the Secretary at a later inspection.[28]??????????? Wefind that GAF?s actions in this matter belie its assertion that it lacked theknowledge necessary for a finding of a serious violation. GAF knew thatoverexposure to airborne silver resulted in ?the discoloration of the skin,eyes, and mucous membrane? yet elected to ignore the data that suggested itsemployees were exposed to a health hazard. Apparently, GAF considered skindiscoloration an innocuous reaction to silver and consequently made no effortto limit the exposure levels in its plant. After making the decision that thepermanent and irreversible discoloration of its employees? skin was only acosmetic reaction to silver, GAF now argues before the Commission that itlacked the knowledge of the hazardous condition. We are not persuaded. Thetestimony establishes that the argyria was ?readily observable? on some of theworkers and that the argyrosis was even more obvious. Considering thistestimony and the compelling photographic exhibits, we cannot conclude that GAFwas without knowledge of the violative conditions. Moreover, in 1973, 1974, and1975, GAF conducted surveys to measure the presence of airborne silver andother air contaminants at its plant in Glens Falls.[29] The data from thesesurveys revealed both permissible levels of airborne silver and some levels abovethe allowable limit. GAF dismissed the results of the surveys, claiming thatthey were unreliable because the surveys were inadequate. Regardless of theerratic nature of the surveys, however, they did indicate that potentiallyimpermissible levels of airborne silver existed within the plant. At that pointit was incumbent upon GAF to investigate further. An employer with notice thatviolative conditions may exist must make reasonable efforts to ascertain if, infact, the conditions are violative of the Act. Borg-Warner Corp., supra. We further note that GAF admitted thatits technicians had the capability to perform time weighted average surveys,yet there is no evidence that these efforts were made. Rather, GAF apparentlychose to rely on the results of the erratic surveys that indicated permissiblelevels of silver. Accordingly, we conclude that the violation was serious.IV??????????? Wemodify the judge?s decision and affirm a serious violation of the Act in thatGAF has failed to comply with the standards at 29 C.F.R. ? 1910.1000(a)(2) and29 C.F.R. ?\u00a01910.1000(e).??????????? Wehave considered the criteria for penalty assessment set forth in section 17(j)of the Act, 29 U.S.C. ? 666(i).[30] Because argyria inflictsa significant personal injury on the GAF workers in the form of permanentirreversible disfigurement, the gravity of this violation is high. Moreover,Respondent?s failure to implement protective measures in the face of an obvioushealth hazard evinces bad faith. Accordingly, we conclude that $1000 is an appropriatepenalty.[31]SO ORDERED?FOR THE COMMISSION:?RAY H. DARLING, JR.,EXECUTIVE SECRETARYDATED: MAR 31, 1981BARNAKO, Acting Chairman, Dissenting in Part:??????????? Iagree with my colleagues for the reasons they state that Respondent failed to complywith 29 C.F.R. ?? 1910.1000(a)(2) and (e) and that respondent knew or couldhave known with the exercise of reasonable diligence of the violativeconditions. However, I do not join in their conclusion that exposure ofRespondent?s employees to excessive concentrations of silver compounds wasshown to present a substantial probability of serious physical harm within themeaning of section 17(k) of the Act, 29 U.S.C. ? 666(j).[32] Therefore, I would affirmthe violation as other than serious in nature.??????????? Inconcluding that the exposure of Respondent?s employees can result in seriousphysical harm my colleagues conclude that permanent discoloration of the skinand eyes itself constitutes serious physical harm.[33] They advance no reasonsto support this conclusion except to declare that an employee?s ?substantialsacrifice of appearance? cannot be considered anything less than serious andthat permanent discoloration results in alteration of the skin sufficient towarrant finding a serious violation.[34] These conclusorystatements by my colleagues do not support their finding that the violation isserious within the meaning of the Act.??????????? Therecord contains no evidence to show that the exposure to excessive levels ofsilver compounds has caused or is likely to cause any loss or disruption oftissue or any other symptom which indicates an adverse effect on thefunctioning of the skin or associated cellular structure. As my colleaguesthemselves concede, the evidence shows only a change in color of the skin andeyes as the result of the deposition of particles of silver and an increasedamount of melanin, a pigment normally present in the skin. The presence ofsilver particles and greater than normal quantities of melanin is not shown tohave any effect other than darkening of the eyes and imparting of bluish tingeto the skin. Indeed, the Secretary?s own expert, Rosenman, testified and hisreport states that the discoloration, argyria, is benign in nature and, inparticular, did not cause any loss of vision to Respondent?s employees.??????????? Disfigurementwhich is not accompanied by any damage to tissue or impairment of body functioncannot be considered serious injury within the meaning of 29 U.S.C. ? 666(j)[35] unless it can be saidthat the statute recognizes the social and psychological effects ofdisfigurement or other substantial deterioration in an employee?s appearance.This conclusion necessarily follows from the fact that absent tissue orfunctional damage negative alterations in an employee?s physical appearancehave no ill effects other than those reflected in the employee?s mental stateand social acceptance. The statute, however, uses the term ?serious physicalharm? (emphasis added). In my opinion, to conclude that intangiblepsychological and societal factors may be considered in determining whether aviolation is serious under the Act would be to strain the plain meaning of 29U.S.C. ? 666(j).[36]In any event, even assuming that the Act may reasonably be construed to includesuch factors, I note, as do my colleagues, that the Secretary adduced noevidence to support his contention that exposure to excessive concentrations ofsilver compounds will cause psychological damage or societal dysfunctions forthe 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 themagnitude present here should have put Respondent on notice to determine theactual levels of silver concentrations to which its employees were exposed orto take other appropriate measures to protect its employees, particularly sinceRespondent was aware that the symptoms exhibited by its employees resulted fromexposure to silver compounds. Accordingly, while I do not consider the violationserious 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 theviolation and Respondent?s lack of good faith.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77?1811 \u00a0 GAF CORPORATION, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: February 7, 1979APPEARANCES:James Magenheimer, Esq. of New York, NewYork for Complainant\u00a0Algird White, Esq. of Albany, New York forRespondent\u00a0DECISIONWorcester, Judge??????????? OnMarch 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 aninspection of GAF?s facility for the production of silver nitrate and silveroxide crystals in Glen Falls, New York, which resulted in the issuance of acitation because of alleged overexposure of employees to airborne silvercompounds and failure to utilize feasible engineering and administrativecontrols to eliminate this hazard in violation of 29 CFR sections1910.1000(a)(2) and 1910.1000(e) respectively. The citation was described asone in which there is substantial probability of death or serious physicalharm. A penalty of $320 was suggested.??????????? AfterGAF filed a notice of contest of the citation and the matter was assigned fortrial a petition by the Secretary for interlocutory appeal delayed trial on themerits until October 10, 1978. In the meantime, as of June 6, 1978, GAFpermanently closed the shop involved thus permanently abating any allegedhazard.??????????? TheSecretary?s compliance officer testified that she believed after readingtechnical literature that there was a possibility of kidney damage andarteriosclerotic changes. Some employees told her that they had defective nightvision, but there is no credible evidence to support this complaint. Sheconceded that she had not found any reliable professional opinion whichsupported her conclusions. (Tr. 1, p. 137).??????????? TheSecretary?s other witness, Dr. Rosenman, a specialist in occupational medicinewho, after the inspection, had performed tests on 30 GAF employees from GlenFalls, concluded that although it is known that when there is exposure tosilver it can be deposited throughout the connective tissue of the body, it hasno marked influence on health. (Tr. II, p. 257). Some employees claimed thatthey had diminished night vision, but Dr. Rosenman said that the examinationand 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).??????????? Atthe conclusion of the trial GAF moved to dismiss and, in the alternative, todecrease the gravity of violation from serious to other than serious. TheRespondent?s motion to dismiss is denied. Its motion to reduce the type ofviolations alleged to have been committed to other than serious, one notinvolving serious injury or death, is granted.??????????? TheSecretary sustained the burden of proof that the exposure of GAF?s employeesexceeded the permissible limits specified by the table under 29 CFR section1000 as alleged in the complaint, but since the Secretary failed to show thatthis would cause serious injury or death a penalty for serious violation isinappropriate. In view of the closure of this manufacturing plant and resultantpermanent abatement of the hazard it is considered, under the provisions of 29CFR section 666(i), that a penalty of $1.00 is appropriate.ORDER??????????? It istherefore 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) beaffirmed as a violation other than serious and that a penalty of $1.00 beassessed.?BEN D. WORCESTERJudge, OSHRCDated: January 8, 1979Boston, Massachusetts[1]The citedstandards read:?1910.1000 AIR CONTAMINANTSAnemployee?s exposure to any material listed in Table Z?1, Z?2, or Z?3 of thissection shall be limited in accordance with the requirements of the followingparagraphs of this section.(a)Table Z?1:(2)Other Materials?8-hour time weighted averages. An employee?s exposure to anymaterial in Table Z?1, the name of which is not preceded by ?C?, in any 8-hourwork shift of a 40-hour work week, shall not exceed the 8-hour time weightedaverage 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 implementedwhenever feasible. When such controls are not feasible to achieve fullcompliance, protective equipment or any other protective measure shall be usedto keep the exposure of employees to air contaminants within the limitsprescribed in this section. Any equipment and\/or technical measures used forthis purpose must be approved for each particular use by a competent industrialhygienist or other technically qualified person. Whenever respirators are used,their use shall comply with ? 1910.134.Table Z?1 \u00a0 p.p.m. mg.\/M3B Substance * * Silver, metal and soluble compounds \u00a0 0.01 \u00a0 \u00a0[2] The plant wasclosed by the Respondent on June 6, 1978, and there is no evidence that thefacility has been reopened by this employer or a successor in interest.[3] The complianceofficers took 39 air samples using 8 GAF employees.[4] In 1973, 1974,and 1975 GAF conducted air quality surveys to assess the presence of aircontaminants in its Glens Falls plant. The surveys revealed levels of airbornesilver both above and below the permissible levels. The testimony reveals thatGAF dismissed the results of the survey because it was not satisfied with themanner in which the surveys had been conducted. GAF asserts that the surveyincluded only spot samples and did not include the time weighted averages ofexposure for the workers. In 1977, GAF contracted with an outside firm for amore thorough survey of the plant?s air quality. Results of that survey werenot available at the time of the hearing.[5] The cartridges inthe respirators were designed to protect against exposure to organic vapors,chlorine, hydrochloric acid and sulfur dioxide.[6] The complianceofficer testified that she observed employees with discoloration of the faceand mucous membrane of the eyes. She noted that discoloration ranged from tintsof gray to ?severe discoloration.? She added that the discoloration was?readily observable.? Photographs of GAF workers included as exhibits in therecord depict the discoloration observed by the compliance officer.[7] All then presentand former employees were invited to participate in the examination.Twenty-nine employees then currently employed at the facility and one formerworker were examined. The employees examined included both laboratory andoffice personnel. Sixteen of the workers had been employed at the GAF plant forfive or more years and fourteen had been employed for shorter periods. Theexamination team included two ophthalmologists, three examining clinicians, onepulmonary physician, and three technicians. The examination consisted ofphysical examination, ophthalmological study, pulmonary function testing, chestx-rays for workers over forty, questionnaires and a number of laboratory tests(CBC, automatic blood chemical analyses, blood silver levels, occult blood instool, urinalysis, and 24 hour urine collection for potassium, calcium, andcreatinine).[8] Argyria is abluish-black discoloration of the skin, mucous membranes, and eyes that resultsfrom an accumulation of silver in the body and the increase in the presence ofmelanin, a dark brown or black pigment that normally occurs in the skin andhair, caused by the presence of silver. The discoloration is permanent andirreversible. It may be of two types: a generalized form; or localized formaffecting the conjunctiva of the eye (argyrosis), nasal septum, or posteriorpharynx. Generalized argyria may result from ingestion or inhalation of silveror silver compounds while localized argyria may be caused by penetration of theskin by fine particles of metallic silver.[9] A report on thestudy is included in the record. Further elucidation is provided by Dr.Rosenman?s testimony at the hearing.[10] Silver depositswere found in the eyes of the workers who complained of impaired night visionbut no impairment of visual function was established. Dr. Rosenman noted thatthe ophthalmological tests given the workers were inadequate to detect impairednight vision. He added that although the tests did not document impaired nightvision they also did not disprove the impairment of which the ten workerscomplained. Four of the ten workers were invited to a New York City clinic formore sophisticated eye tests. The results were not available for the hearing.[11] Only the 9workers over 40 years of age were given chest x-rays.[12] Blood testsrevealed that only one worker had an elevated creatinine level.12a Doctor Rosenmantestified that creatinine clearance is an indicator of how much of the kidneyis functioning.[13] The Secretarysuggests that Judge Worcester?s decision to vacate that item was prompted byevidence that GAF had closed its Glens Falls facility. There is no basis for usto confirm the Secretary?s surmise. However, we note, as the Secretarycorrectly submits, subsequent closure of a plant does not negate a violationthat 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?sfailure to comply with Act).[14] In its brief onreview, Respondent refers to face shields, safety glasses, protective gloves,rubberized leggings, and other equipment worn by its employees. Those measureshowever, are effective only to prevent physical contact with a substance and donot protect against the hazard of inhalation addressed by the cited standards.[15] In view of thisconclusion we need not address Respondent?s assertion that the complianceofficer was of limited expertise and therefore not qualified to testify on thesubject of engineering controls.[16] Section 17(k) ofthe Act, 29 U.S.C. ? 666(j), states in pertinent part:.. . A serious violation shall be deemed to exist . . . if there is a substantialprobability that death or serious physical harm could result from a conditionwhich exists . . . unless the employer did not, and could not with the exerciseof reasonable diligence, know of the presence of the violation.Thus, the two elements that must beestablished to prove the existence of a serious violation are (1) thesubstantial probability of death or serious physical harm, and (2) the actualor constructive knowledge of the violative condition by the employer. See Niagara Mohawk Power Corp., 76OSAHRC 36\/A2, 7 BNA OSHC 1447, 1979 CCH OSHD ?23,670 (No. 76?2414, 1979).[17] The Secretarysubmits that the Act?s concern with the psychological dimension of occupationalsafety and health is specifically noted in section 2(b)(5) of the Act, 29U.S.C. ? 651(b)(5):(b)The Congress declares it to be its purpose and policy . . . to assure so far aspossible every working man and woman in the Nation safe and healthful workingconditions 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 theSecretary cites Usery v. HermitageConcrete 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); CaliforniaStevedore and Ballast Co. v. OSHRC, 517 F.2d 986 (9th Cir. 1975).[19] Respondentargues, in essence, that although it dismissed the results of its air qualitysurveys because of their erratic quality, its decision to conduct such surveysdemonstrated a reasonable and diligent good faith effort to ascertain theexistence of a hazardous condition.[20] Respondent notes thatit was inspected in February 1973 by Federal OSHA officials and no citation wasissued at that time. In February and March 1974, the New York State Departmentof Labor conducted inspections and no air quality violations were reported. GAFnotes further that in 1975 an inspection and a reinspection were conducted byfederal OSHA officials and again no citations for air quality violations wereissued.[21] See P.B. Beesonand W. McDermott, Cecil-Loeb Textbook ofMedicine 1923 (13th ed. 1971). A nephrotoxin is substance harmful to thecells of the kidney.[22] Id. Thrombocytopenia is a conditionexhibiting an abnormally small number of platelets in the circulating blood.[23] See E. Browning, Toxicology of Industrial Metals 262?267(1961).[24] See A. Hamiltonand H.L. Hardy, Industrial ToxicologyPublishing 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 noposition today with regard to the Secretary?s claims concerning thepsychological dysfunctions that accompany permanent skin discoloration. We notethat no evidence of psychological harm was submitted at the hearing.[27] CommissionerCottine concludes that the evidence of record establishes that the chronicabdominal pain, nose bleeds, and irritation of mucosal membranes are caused bythe corrosive substances in silver nitrate and silver oxide at the higherconcentrations at this worksite. Moreover, he concludes that these chronicailments also support the finding of serious physical harm within the meaningof section 17(k) of the Act.[28] We note that thetestimony reveals that the inspections in 1975 by the New York State Departmentof Labor and by the Federal Occupational Safety and Health Administration didnot involve a survey of the levels of airborne silver. Apparently they weresafety inspections.[29] These were thesame years that OSHA?both state and federal agencies?inspections were conducted.See note 21 supra.[30] Section 17(j) ofthe Act reads:TheCommission shall have authority to assess all civil penalties provided in thissection, giving due consideration to the appropriateness of the penalty withrespect to the size of the business of the employer being charged, the gravityof the violation, the good faith of the employer, and the history of previousviolations.[31] The Secretary hasproposed a penalty of $320. It is well settled that the Commission may assess apenalty 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, 531F.2d 451 (10th Cir. 1976); CaliforniaStevedores & Ballast Co. v. OSHRC, supra; Jensen Construction Co., 77 OSAHRC 201\/C6, 6 BNA OSHC 1070, 1977?78CCH OSHD ?22,323 (No. 14300, 1977); WorcesterPressed Steel Co., 78 OSAHRC 89\/A2, 3 BNA OSHC 1661, 1975?76 CCH OSHD?20,104 (No. 4237, 1975).[32] This provision isquoted in pertinent part at note 16 of the lead opinion.[33] There is no evidenceto show a substantial probability that death could result from the conditionsin Respondent?s plant, and neither the Secretary nor my colleagues consider theviolation serious for this reason.[34] My colleagues,however, do allude to the standards of recovery under workers? compensationlaws. 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., 80OSAHRC___, 9 BNA OSHC 1009, 1019, 1980 CCH OSHD 24,964 at 30,817 (No. 78?1103,1980); Sugar Cane Growers Coop. ofFlorida, 76 OSAHRC 62\/E4, 4 BNA OSHC 1320, 1976?77 CCH OSHD ?20, 795 (No.7673, 1976).[35] I do not join inCommissioner Cottine?s conclusion that other effects of a chronic nature,specifically abdominal pain, nosebleeds, and irritation of the upperrespiratory tract, also support the finding of serious physical harm within themeaning of section 666(j). While these ailments may be recurrent in exposedemployees, 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 aresymptoms of or otherwise associated with any impairment of a body function.[36] The Secretary?sreliance on the statement of statutory purpose set forth at 29 U.S.C.?\u00a0651(b)(5), quoted in note 17 of the lead opinion, is misplaced. Theissue in this case is not whether psychological factors have significance butrather whether they are a sufficient basis alone on which to find a violationserious in nature. To answer the latter question in the negative is not tosuggest that cosmetic or appearance factors are unimportant. See the discussioninfra.”