AMERACE CORPORATION
OSHRC Docket No. 7490
Occupational Safety and Health Review Commission
April 19, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Herman Grant, Regional Solicitor
William Rice, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
On February 4, 1975, Administrative Law Judge Henry C. Winters issued a decision vacating a citation alleging that respondent failed to comply with 29 CFR § 1910.94(d)(9)(viii) and thereby violated section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (hereinafter "the Act"). On February 14, 1975, the Secretary of Labor filed a petition for discretionary review of the decision, and the petition was granted. The primary issues raised by the petition are:
(1) Whether the ALJ erred in finding the standard at 29 CFR § 1910.94(d)(9)(viii) unenforceably vague with respect to medical examinations of workers exposed to chromic acids?
(2) Whether, on the facts of this case, respondent complied with the cited standard.
Both parties have filed briefs before us.
The standard cited by the Secretary reads as follows:
§ 1910.94 Ventilation.
* * *
(d) Open surface tanks.
* * *
(9) Personal protection.
* * *
(viii) Operators [*2] with sores, burns, or other skin lesions requiring medical treatment shall not be allowed to work at their regular operations until so authorized by a physician. Any small skin abrasions, cuts, rash, or open sores which are found or reported shall be treated by a properly designated person so that chances of exposures to the chemicals are removed. Workers exposed to chromic acids shall have a periodic examination made of the nostrils and other parts of the body, to detect incipient ulceration.
The underscored portion of the standard is the portion which the Secretary has alleged that respondent has not met.
The important facts are essentially undisputed. Respondent manufactures chrome-plated plastic parts. As part of a computer-automated chrome-plating process, employees load plastic parts onto racks that are dipped into a series of acid washes and rinses. Employees then unload the parts. Chromic acid in solution is used in the acid washes. Chromic acid is a corrosive substance that, in liquid or mist form, produces ulcerations upon contact with the skin or upper respiratory tract. Approximately 20 employees work in close proximity to the plating area and are exposed [*3] to chromic acid mists. Respondent neither provides nor requires physical examinations of its employees and, despite repeated requests by the employees' union local president, has refused to do so. n1
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n1 Two other employees testified, in addition to the union local president. Employee Wanda Lane testified that two or three months after she began working in the racking department she became repeatedly ill with a sore throat and nausea, and suffered from blisters on her hands and months. Her physician concluded that her symptoms were caused by "acid exposure," and instructed her not to return to work until her lesions healed. Respondent's personnel manager told her that before she could be given leave, she must be examined by Amerace's physician. He promised to, but did not, arrange such an examination. Leave was subsequently granted when the union president presented the employee's physician's note to respondent. After her transfer from the racking department her symptoms subsided. Another employee assigned to the racking department, Lois Bacon, testified that she suffered growths on her vocal chords that required surgery, hoarseness, and a sore throat. She too was instructed by her physician not to return to the racking department. She gave her physician's letter to that effect to the plant manager, who filed it and promised to transfer her. The manager left the plant, however, and the employee was never moved.
The Administrative Law Judge suggested that this evidence was insufficient because
[t]here was no showing that either [employee] suffered from ulceration due to any kind of contact with chromic acid; nor that their conditions had any connection whatsoever with what did or did not occur on [the date of inspection].
We disagree with the Judge. With reference to the exposure issue, we think that in view of the circumstances of their working conditions, the inference is compelling that the employees' symptoms were due to chromic acid exposure. We also find it unnecessary to establish that the employees' symptoms were due to working conditions existing on the inspection date. The gravamen of the violation is a failure to give medical examinations on or about the inspection date. The symptoms are merely evidence relevant to the exposure issue, and not ultimate issues in themselves. See Concrete Construction Corp., BNA 4 OSHC 1133, 1135 & n.3, CCH 1975-76 OSHD para. 20,610 at 24,664 & n.3 (No. 2490, 1976). Also, as we explain more fully in the text, the circumstances we have noted here put respondent on notice that employees were suffering from exposure to chromic acid.
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The Administrative Law Judge held that the cited portion of the standard is unenforceably vague, and that in any event the evidence of a violation was insufficient. Noting that the standard does not define the terms "exposed to chromic acids" and "periodic examination," the Judge held that the standard incorporates no external or objective tests that would afford reasonable warning of its prohibitions. We disagree with these holdings.
First we point out that the cited portion of the standard is plainly preventive in nature. Its purpose is not to detect ulcerations that have become readily apparent, but "to detect incipient ulceration." We agree with the Secretary that in order to preserve for employees the protection which the standard expressly contemplates, the phrase "workers exposed to chromic acids" must be interpreted to include employees working in a workplace containing detectable levels of chromic acid in either mist or liquid form. Cf. GAF Corporation, BNA 3 OSHC 1686, CCH 1975-76 OSHD para. 20,163 (No. 3203, etc., 1975). As so construed, this term of the standard is not considered [*5] vague. See Rose v. Locke, 96 S.Ct. 243, 244 (1975).
With respect to the term "periodic examinations," it is unnecessary to give a comprehensive interpretation at this time. In the record as presently composed, Amerace has not given its employees even one examination even though it has known that it employees were exposed to a detectable level of chromic acid. The standard under any reading contemplates that employees will be given at least one examination, if for no other reason than to help ascertain whether incipient ulcerations have already occurred, and with what frequency any subsequent examinations must be given. Accordingly, the vagueness claim on the present record lacks merit. See United States Steel Corp. v. O.S.H.R.C., 537 F.2d 780 (3d Cir. 1976).
On the present record, we conclude that Amerace employees were exposed to a detectable level of chromic acid and did not receive any physical examinations to detect incipient ulceration. The Judge, however, granted the respondent's motion for involuntary dismissal at the close of the Secretary's case-in-chief. The case must therefore be remanded for further proceedings. n1a
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n1a I must disagree with my concurring colleague that the interpretation of the term "periodic examination" in the present record is an abstraction. We are reviewing the action of an Administrative Law Judge who found the standard to be unenforceably vague in ruling upon the employer's motion to dismiss. Both parties have briefed the vagueness issue. Without an interpretation, our review for about two years is essentially a waste of time because there is in effect a general remand. Policy guidance at this time is appropriate, if not necessary. See Keystone Roofing Co., Inc. v. O.S.H.R.C., 539 F.2d 960 (3d Cir. 1976); Statement of Senator Javits, Staff of Senate Comm. on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, 470 (Comm. Print 1971).
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Accordingly, the case is remanded for further proceedings not inconsistent with this opinion. The Judge shall expedite the proceedings.
SO ORDERED.
CONCURBY: BARNAKO
CONCUR:
BARNAKO, Chairman, Concurring:
I concur in remanding the case [*7] for Respondent's evidence. I do not join in my colleague's discussion of the interpretation of the term "periodic examination" inasmuch as an interpretation at this time would be premature. I decline to attempt to define the term on the incomplete record which is before us, since such a definition would be based on an abstraction. See Brennan v. OSHRC (Santa Fe Trail Transport Co.), 505 F. 2d 869 (10th Cir. 1974). Moreover, evidence adduced by Respondent on remand may render a determination on the meaning of "periodic examination" unnecessary.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
Judge Winters correctly found in his decision, which is attached hereto as Appendix A, that the occupational safety and health standard codified at 29 C.F.R. § 1910.94(d)(9)(viii) n2 is unenforceably vague. I agree with his reasoning and would affirm his decision.
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n2 The complete text thereof is quoted in the lead opinion.
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The vagueness of the standard is well-illustrated by the inability of my colleagues to agree on a definition [*8] of the term "periodic examination." Although he declines to give "a comprehensive interpretation at this time," Commissioner Cleary states that it means "at least one examination." Chairman Barnako does not give a definition and states that he does not join in Commissioner Cleary's interpretation of the term because an interpretation is premature at this time. n3 The Commission, however, should not have to speculate as to what was intended by the term, and I decline to participate in speculation. It is a matter which the Secretary of Labor can easily correct by modifying his regulation, and he should be required to do so. n4
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n3 Apparently, Chairman Barnako expects respondent to provide a definition which will show that the standard is not unenforceably vague. He is obviously confused as to where the burden of proof rests on that matter. See Hoffman Construction Co. v. OSAHRC, 546 F.2d 281 (9th Cir. 1976); Diamond Roofing Co. v. OSAHRC, 528 F.2d 645 (5th Cir. 1976); Cape and Vineyard Division of the New Bedford Gas and Edison Light Co., 511 F.2d 1148 (1st Cir. 1975).
n4 Diamond Roofing Co. v. OSAHRC, supra.
[*9]
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If my colleagues cannot tell the employers of the country what is meant by "a periodic examination," how can they reverse the Judge's decision? The answer is obvious, and their holding is patently wrong.
At the hearing, complainant was unable to cure the ambiguity of what is meant by "exposed to chromic acid." n5 He did not present any evidence of what the phrase would mean to a reasonable man in respondent's industry. n6 Instead, complainant's witnesses expressed contradictory opinions on what level of chromic acid in the air would be harmful and would constitute exposure. They also disagreed on what employees in which parts of the plant would be "exposed to chromic acids." Complainant's inspectors did not take any air samples to determine whether chromic acid was actually in the air breathed by any of respondent's employees, nor did complainant present any expert testimony on whether the chromic acid would waft from the acid baths to the racking stations where employees were working. n1 Instead of submitting persuasive evidence, complainant relied on showing the locations of the baths and the work [*10] stations and evidence that a few employees suffered various medical problems. He did not, however, present any expert evidence to show that the employees' problems resulted from exposure to chromic acids.
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n5 Messrs. Barnako and Cleary try to fill this void by the use of unsupported conclusional statements. Similarly, they indicate that they "think . . . that the employees' symptoms were due to chromic acid exposure." Apparently, they have forgotten that it is the evidence in the record, not their own thoughts, which is controlling. National Realty and Construction Company v. OSAHRC, 489 F.2d 1257, 1267 (D.C. Cir. 1973). Their thoughts are sheer speculation. The symptoms enumerated in footnote 1 of the lead opinion could have been caused by any number of things.
n6 See Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1146 (1st Cir. 1975).
n7 No acid bath was located closer than 10 feet from the nearest racking station and the chrome-plated camera parts passed through 3 or 4 rinses before arrival at a racking station. Furthermore, it is not established whether a residue of chromic acid remained on the plated parts after they were rinsed.
[*11]
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The major infirmity in § 1910.94(d)(9)(viii) is that it "creat[es] no specific standard" as to when a periodic examination must be given. n8 Hoffman Construction Company v. OSAHRC, No. 75-1741 (9th Cir., November 1, 1976). It is therefore subject to arbitrary application and multiple interpretations by government enforcement officials, as the testimony in this case so well illustrates. Thus, it is unenforceably vague on its face as well as "in the light of the conduct to which it is applied." United States v. National Dairy Products Corp., 372 U.S. 29, 36 (1963). See McLean Trucking Company v. OSAHRC, 503 F.2d 8 (4th Cir. 1974); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974).
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n8 When there is no evidnece that a particular condition constitutes an occupational hazard, there is no violation of the Act. Secretary v. Alfred S. Austin Construction Co., OSAHRC Docket No. 4809, April 28, 1976. Thus, it is fundamental that the Secretary of Labor must specify what levels of chromic acid present a sufficient potential danger to trigger a requirement for periodic examination of employees. Otherwise, all employers who have employees working anywhere in the vicinity of chromic acid will be required to provide periodic examinations, whatever that might be, even if their employees are not exposed to any hazard whatsoever. My colleagues, however, as they have done previously in regard to asbestos exposure, have no difficulty placing such an unreasonable requirement on employers. See Secretary v. GAF Corp., OSAHRC Docket No. 3203, November 14, 1975. In the instant case, they do so despite the fact that the standard is unclear as to whether the duty to provide the examinations rests on employers or employees.
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APPENDIX A
DECISION AND ORDER
Ronald L. Barson, and James White, for complainant
William K. Rice, for respondent
STATEMENT OF THE CASE
This is an action under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) to affirm Citation Number One, Item No. 1, which alleges that Respondent failed to provide employees exposed to chromic acids with a periodic examination made of the nostrils and other parts of the body to detect incipient ulceration, contrary to 29 CFR 1910.94(d)(9)(viii). No penalty was proposed for such violation. The citation as originally issued contained another alleged violation at Item Number 2, which has been withdrawn by the Secretary for lack of sufficient proof.
By notice of contest in the form of a letter, dated April 11, 1974, the Respondent contested the alleged violations.
By complaint, filed May 8, 1974, the Secretary seeks to have the citation affirmed. The complaint clarifies the charge by alleging that the violation occurred on March 14, 1974. By answer, filed May 30, 1974, the Respondent as a first defense denies the allegations of violation, [*13] as a second defense alleges that the standard involved at Item No. 1 is unenforceably vague, and as a third defense that the interpretation and application of such standard in this matter is unreasonable, arbitrary, capricious and constitutes an abuse of discretion and the standard is therefore unenforceable.
Hearing was held before this Judge at Indianapolis, Indiana on July 23, 1974. No employee or employee representative participated as a party. Post-hearing briefs were filed on behalf of the Secretary and the Respondent.
THE ISSUES
At the close of the Secretary's case, the Respondent moved to dismiss Item No. 1 on three grounds:
(1) The Secretary has failed to introduce evidence to meet the proponderance of evidence test to establish the violation of the standard in question, the evidence indicating very low likelihood of exposure and a probability of no exposure;
(2) Item No. 1 and the standard allegedly violated are vague, meaningless, indefinite and therefore unenforceable; and
(3) The various interpretations advanced by the Secretary on behalf of the standard are unreasonable, arbitrary and capricious and the standard is therefore unenforceable, and there is no [*14] showing that the standard is reasonably necessary to establish a healthful place to work.
This Judge indicated he intended to dismiss the complaint and vacate Item No. 1 of the citation for the reason that the pertinent part of the standard alleged to have been violated is unreasonably vague and therefore unenforceable. He called for briefs from the parties before finalizing his decision.
DISCUSSION, FINDINGS AND CONCLUSION
At all times herein pertinent the Respondent was and is engaged in a business affecting commerce. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.
The standard allegedly violated at Item No. 1 reads as follows:
1910.94 Ventilation
* * *
(d) Open surface tanks
* * *
(9) Personal protection.
* * *
(viii) Operators with sores, burns, or other skin lesions requiring medical treatment shall not be allowed to work at their regular operations until so authorized by a physician. Any small skin abrasions, cuts, rash, or open sores which are found or reported shall be treated by a properly designated person so that chances of exposures to the chemicals are removed. Workers exposed to chromic acids shall have [*15] a periodic examination made of the nostrils and other parts of the body, to detect incipient ulceration. (Emphasis supplied).
The emphasized (underlined) portion of the above standard is that relied upon by the Secretary in alleging that a violation occurred.
A standard which is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process. Brennan v. OSAHRC and Santa Fe Trail Transport Co. No. 74-1049 (10th CA 1-23-74). The standard here involved is such a standard. Therefore, Respondent's motion, made at the close of the Secretary's case in chief, to dismiss the complaint and to vacate the citation and proposed penalty must be granted.
None of the words and phrases used in the pertinent portion of the standard are defined. The phrase "exposed to chromic acids" is not clear and is not defined. The term "periodic examination" is not clear and is not defined. Men of common intelligence would have to guess as to the meaning of such quoted language. It is the unnecessary vagueness of that language which causes this standard to be unreasonable and, therefore, unenforceable.
The working conditions to [*16] which the standard is attempted to be applied are not described in precise detail. No photographs were offered in evidence.
Employees of Respondent load unplated camera parts on racks at one end of what is called an automatic plating line. The parts on the racks automatically move through a series of acid washes and rinses. At the end of the plating line, the parts are removed from the plating line by Respondent's employees, different from those loading the racks at the beginning of the plating line.
The compliance officer who made the inspection further described the automatic plating line in the following language (Tr 12, 13):
. . . It's a series of tanks, and it's on a time sequence that the parts are immersed in acid and rinses, and electrically build up on the chrome plating as it goes through. There's approximately 20 tanks.
. . . An acid wash is a mixture of acid, sulphuric, uratic, that affects the product being plated.
The compliance officer further explained (Tr 12):
. . . We walked the whole automatic plating line. I asked Mr. Wheaton [employer representative] how many chromic acid baths there were; I believe he said two. And I could be wrong. Naturally, you [*17] have to use chromic acid for chrome plate.
At the time of the inspection, there were approximately 20 employees "surrounding that plating area" (Tr 20). Some were loading, and some were at the take-off rick. Nobody was working in the center of the automatic line, which is operated by computer in a closed control room.
The employees taking the parts off of the rack were located three or four rinse tanks away from the last acid bath. The closest person was some 10 feet from the closest acid tank; the next, 12 to 15 feet; and the farthest, some 18 to 20 feet.
Two OSHA employees testified at the hearing. One was the compliance officer who made the inspection. The other was an industrial hygienist who had not observed Respondent's operations. The vague and sometimes divergent views expressed by these OSHA witnesses emphasize the impossible task facing the Respondent in attempting to understand the involved standard as it applies to its chrome-plating operations, so as to determine what employees, if any, are "exposed to chromic acids" and, if so, what kind of an examination should be made and how often.
On direct examination, the compliance officer, while not attempting in so [*18] many words to define the phrase "exposed to chromic acids," indicated that the removal of the chromed parts from the racks at the end of the automatic line constituted "exposure." (TR 11). On cross-examination, the compliance officer expressed the opinion that "anybody who has contact with chromic acid" (TR 22) would be required to be examined. In his opinion, the employees "who are adding chromic acid into the washes" (TR 22) and those taking the chromed parts off of the rack are required to be examined but those who put the parts on the racks before plating are not required to be examined.
The following testimony was then elicited from the compliance officer (TR 25, 26, 27):
A. . . . In my opinion they [employees adding unplated parts] are far enough away they are not handling plated parts, so I can't see --
Q. So there is an area then where in your opinion the exposure is low enough?
A. Yes.
Q. To not require examinations?
A. Yes.
Q. Even though they are exposed?
A. I don't know if they are exposed or not.
Q. You don't know whether they are exposed?
A. This is up to the employer to determine.
JUDGE WINTERS. While we are on the subject; is the word "exposed," [*19] as used in this standard, defined anywhere that you know of?
A. No, I don't.
Q. So you are saying that only chose in the immediate vicinity of the chromic plating area would be?
A. Well, all I can require is what the standard requires, and that's -- should be determined by the employer, what people he has exposed to chromic acid.
Q. In any event, according to your interpretation of the standard, I believe we have established at some point in that plant people are not exposed as that term is used in the standard?
A. Yes, very definitely.
Q. . . . Let me ask you that, whether or not there is, in your opinion, chromic acid in the air throughout the plant?
A. I don't say necessarily in the air. Chromic acid is being used, and in my opinion there is exposure.
Upon redirect examination, the same subject was pursued (TR 27, 28):
Q. When you refer to the standard you did . . . you had a definite idea which employees you thought were affected by this exposure to the chromic acid?
A. Yes.
Q. Which employees were these?
A. At the time I was mainly interested in the people at the take-off station because of employee interviews.
Q. These employees, they took these parts [*20] off the rack, they had already been in chromic acid, so they were touching parts that had been in chromic acid?
A. They had been, but they went through three or four rinse tanks.
The industrial hygienist was of the opinion that exposure means "where you have contact, either with mist, or the liquid solution of the chemical involved" (TR 34) and that as to chromic acid in the air "anything above zero" constitutes exposure (TR 35).
The industrial hygienist from OSHA defined "periodic" from the standpoint of industrial hygiene in the following language (TR 36, 37):
A. . . . It's an aspect of medicine. In the field of industrial hygiene and occupational medicine, when we talk of periodic in examination, that means an evaluation by a physician of the employee's health and well being as it pertains to his exposure to what his environmental exposures have been. The period of time between examinations is generally considered to be within the premises of the physician himself, and this is determined primarily by the type of exposure, the material involved, the extent or severity of the hazard involved.
Q. What is the best way for a physician to initially determine this rate of examination? [*21]
A. He must have an initial physical examination of the people who are exposed to have a baseline to determine what their examination frequency should be.
As to meaning of the terms used in the involved standard, this Judge gives very little weight to the opinions expressed by the two OSHA witnesses. This Judge cannot accept as fact the conclusion that employees should be examined for incipient ulceration on the same timetable as equipment is inspected nor that the framers of this standard intended to delegate to whatever physician is chosen by an employer the decision as to what such a timetable should be. The testimony of these two witnesses confirm the conclusion that men of common intelligence must necessarily guess at the meaning of certain terms used in the standard.
This Judge gives no consideration whatsoever to the improper reference by counsel for the Secretary in his initial brief (pp. 11, 12) to a purported quote from a pamphlet purportedly issued by the American Medical Association. This material was not offered or received in evidence. It is not a proper subject of official notice. Even if Respondent had no objection to its consideration, the material quoted [*22] by such counsel has absolutely no probative value in deciding the issues of the proceeding.
The factual circumstances here are clearly distinguishable from those considered in Ryder Truck Lines v. Brennan (5th Cir. 1974) 497 F.2d 230 and in Brennan v. OSAHRC and Santa Fe Trail Transport Co., supra. Here the standard has definitely not been drafted with as much exactitude as possible in the light of the myriad conceivable situations which could arise and which would be capable of causing injury. There is here no external and objective test such as whether or not a reasonable person would recognize a hazard. Here the mandate of the standard does not afford a reasonable warning of the prescribed conduct in light of common understanding and practices.
The best evidence that specificity and exactitude are possible is the recommended chromic acid standard approved in 1973 by the National Institute for Occupational Safety and Health, a copy of which was received in evidence in this proceeding as Judge's Exhibit No. 1 (originally marked for identification as Respondent's Exhibit No. 1). (See TR 43, 44 and Judge's order of January 2, 1975) and for convenience herein referred to [*23] as the NIOSH Recommended Standard.
The NIOSH Recommended Standard contains the following definitions (page 1, Judge's Exhibit No. 1):
"Chromic acid" is definied to mean chromium trioxide (chromium (VI) oxide, or chromic acid anhydride) and aqueous solutions thereof. "Occupational exposure to chromic acid" is defined as exposure above half the recommended workroom environmental standard.
The workroom environmental standard is set forth with specificity as Section 1 of the NIOSH Recommended Standard. Section 2 of such recommended standard sets forth with specificity the type of required medical surveillance and the type and frequency of medical examinations, calling for preplacement as well as periodic annual examinations.
This Judge refers to the NIOSH Recommended Standard not in an effort to substitute his judgment for that of the Secretary and state that the recommended standard should have been adopted; but rather to demonstrate that specific meaningful standards are possible which have just as broad and even broader coverage than the vague and meaningless standard here under consideration. To attempt to enforce such a vague standard would obstruct the purposes of the Act [*24] and do a disservice to employees subjected to the hazards of chromic acids.
This Judge finds it unnecessary to comment in detail upon what he considers to be an inadequate inspection nor upon the insufficiency of the evidence offered by the Secretary. He is constrained to point out, however, that there is presently in effect a standard (29 CFR 1910.93(b)(2)) regulating the ceiling concentration of chromic acid as an air contaminant to which an employee may be exposed during an 8-hour shift. This record does not show whether the compliance officer made a measurement to find out the concentration of chromic acid in the air; nor if such a measurement was made, what were the results; nor if such a measurement was not made, why not.
Two employees testified to suffering medical problems attributed to their working at the involved plant at times prior to the involved inspection. There was no showing that either of them suffered from ulceration due to any kind of contact with chromic acid; nor that their conditions had any connection whatsoever with what did or did not occur on March 14, 1974.
ORDER
In view of the findings made and conclusions reached herein, IT IS ORDERED that [*25] Citation Number 1, issued March 20, 1974, and Notification of Proposed Penalty, issued March 20, 1974, be and they are hereby vacated.
Dated at Seattle, Washington this 15th day of January 1975.
HENRY C. WINTERS, Judge