KAISER ALUMINUM AND CHEMICAL CORP.
OSHRC Docket No. 77-699
Occupational Safety and Health Review Commission
July 30, 1982
[*1]
Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
Marshall H. Harris, Reg. Sol., USDOL
Stephen H. Booth, Labor Counsel, Kaiser Aluminum & Chemical Corp., for the employer
Mary-Win O'Brien, Assistant General Counsel, United Steelworkers of America, for the employees
Van O'Lynn, United Steelworkers of America, Local Union 5668, for the employees
OPINION:
DECISION
By THE COMMISSION:
The sole issue in this case is whether a violation of 29 C.F.R. § 1910.132(a) n1 by Respondent, Kaiser Aluminum and Chemical Corporation ("Kaiser"), stemming from its failure to protect its employees from exposure to polychlorinated biphenyl, should be characterized as serious within the meaning of 29 U.S.C. § 666(j), section 17(k) of the Occupational Safety and Health Act of 1971, 29 U.S.C. § § 651-678 ("the Act"). n2 We conclude that the violation should be characterized as serious and reverse the judge's decision in part.
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n1 Section 1910.132(a) provides:
§ 1910.132 General requirements.
(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.
n2 Section 17(k), 29 U.S.C. § 666(j), states:
For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
[*2]
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A polychlorinated biphenyl ("PCB") is one of a group of substances that consist of two phenyl molecules bonded together with one to ten chlorine atoms. Thus, a tetrachlorobiphenyl has four chlorine atoms on its basic biphenyl structure. Aroclor 1016 is a mixture of various PCB's manufactured by Monsanto Industrial Chemicals Company that is used as a conductive material in capacitors at Kaiser's Ravenswood, West Virginia facility. The capacitors weigh approximately 100 pounds and are stacked in rows on three different levels. Occasionally a capacitor's steel casing ruptures and the Aroclor 1016 spills out. Because of their relatively small size (they are 18 inches high, 6 inches wide and 24 to 30 inches long), their weight and location, the capacitors are difficult to remove when they rupture. They must be "manhandled" out by Kaiser's employees. During this operation, the Aroclor 1016 may spill onto the employee handling the capacitor.
During one such operation on October 17, 1976, Aroclor 1016 flowed onto the clothing and soaked the shirt of DeVilbiss, an electrician for Kaiser. Some of the [*3] Aroclor 1016 also entered his mouth. DeVilbiss, who was not wearing any type of personal protective equipment, also received 10 or 12 less severe exposures to Aroclor 1016 over a 5 or 6 month period before and after the day of this large spill. Other employees working with capacitors were also exposed. See note 11, infra. The amount of Aroclor 1016 released in all of the exposures was estimated by DeVilbiss to range from as much as a quart, which made his clothes stick to his body, to as little as a tablespoon. DeVilbiss testified that he experienced a foul taste in his mouth and noticed a reddening of his skin as a result of these exposures. DeVilbiss also testified that beginning in mid-October, 1976, he requested information from his foreman regarding the health hazards of PCB contact and the need for protective equipment. Despite almost daily requests, he received no response. DeVilbiss then contacted OSHA and was advised to use protective equipment, including a respirator if ventilation was not adequate. He reported this information to his foreman. After two more weeks of inaction by his foreman, DeVilbiss contacted his union. As a consequence, the worksite was inspected [*4] by OSHA in January 1977.
The Secretary issued a citation alleging that Kaiser had failed to comply with 29 C.F.R. § 1910.132(a) in that personal protective equipment was not used and maintained in a sanitary and reliable condition where employees were exposed to "PCB-type oil (Askarel) during replacement and clean-up of certain ruptured capacitors." The citation also alleged that the violation was "serious" within the meaning of section 17(k).
Lawrence J. Fine, M.D., assistant professor of occupational medicine at the Harvard School of Public Health, testified for the Secretary on the basis of his research into the literature on PCB's. Dr. Fine characterized Aroclor 1016 as a suspected carcinogen because it is similar in composition to other PCB mixtures, such as Aroclor 1254 and Aroclor 1260, that are associated with cancer in animals. Dr. Fine stated that the similarity among PCB mixtures is determined by the number of chlorine atoms on the basic biphenyl molecule. He also testified that twenty-three or twenty-one percent of the same PCB components is found is found in both Aroclor 1016 and Aroclor 1254, and that Aroclor 1242 is made up of 88% of the same PCB components as [*5] Aroclor 1016. n3
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n3 The table partially reproduced below is from Kaiser's exhibit B, Lloyd et. al., Polychlorinated Biphenyis, 18 J. Occup. Med. 109, 110 (1976). It has been rearranged slightly and the columns of overlaps between Aroclors have been added. Although the data in the table may not have formed the basis of Dr. Fine's testimony, the similarities between the mixtures in the table are nearly identical to Dr. Fine's figures. The Aroclor 1016 used in Kaiser's capacitor is somewhat different from the Aroclor 1016 described in the table; the Aroclor 1016 used by Kaiser contains 39.5% chlorine by weight.
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Description of PCB Mixtures. |
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|
|
|
||||
|
|
Aroclor |
Overlap |
Aroclor |
Overlap |
Aroclor |
|
|
1242 * |
between |
1016 * |
between |
1254 * |
|
|
|
Aroclors |
|
Aroclors |
|
|
|
|
1242 & |
|
1242 & |
|
|
|
|
1016 |
|
1254 |
|
|
Approximate Chlorine |
|
||||
|
Content |
42% |
|
42% |
|
54% |
|
|
|
||||
|
Components |
|
||||
|
Biphenyl |
0.1 |
0.1 |
0.1 |
0.1 |
0.1 |
|
Monochlorobiphenyls |
1 |
1 |
1 |
0.1 |
0.1 |
|
Dichlorobiphenyls |
16 |
16 |
20 |
0.5 |
0.5 |
|
Trichlorobiphenyls |
49 |
49 |
57 |
1 |
1 |
|
Tetrachlorobiphenyls |
25 |
21 |
21 |
21 |
21 |
|
Pentachlorobiphenyls |
8 |
1 |
1 |
1 |
48 |
|
Hexachlorobiphenyls |
1 |
0.1 |
0.1 |
0.1 |
23 |
|
Heptachlorobiphenyls |
0.1 |
0 |
0 |
0 |
6 |
|
|
|
||||
|
|
|
Total |
|
Total |
|
|
|
|
Overlap 88.2% |
|
Overlap 23.8% |
|
* Weight-weight percent.
[*6]
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Dr. Fine stated that tumors of the skin and internal organs that could arise from an exposure to Aroclor 1016 "such as . . . the exposure that occurred in [this case] . . . in 1976" might not appear for fifteen to thirty years after an exposure. He noted that PCB's are absorbed through the skin and that a melanoma caused by cutaneous exposures to PCB's could be metastasized throughout the body. n4 He testified that the reddening of the skin experienced by DeVilbiss was the earliest sign of skin toxicity of PCB's. Chloracne, which he characterized as a "painful" and "very serious" form of skin eruption known to persist at least several months after exposure, was the next stage of skin toxicity of PCB's. n5 Dr. Fine testified that PCB-induced cancer could develop 15 or 30 years after an initial exposure without evidence of acute toxicity such as skin reactions. Dr. Fine noted that in terms of carcinogenicity, toxicity cannot be measured without many years of observation. He therefore recommended that all skin exposures to Aroclor 1016 should and could be avoided through the use of nonporous personal [*7] protective equipment. n6
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n4 Dr. Fine also noted that the pancreatic cancer observed in a Mobil Oil Co. study of PCB exposed workers was probably due to both skin absorption and inhalation, resulting in PCB transportation through the bloodstream and storage in the pancreas. Liver and fatty tissue accumulation occur in the same manner.
n5 Dr. Fine identified other toxic effects of PCB exposure as: upper respiratory tract and mucous membrane irritation, stinging of the eyes, repugnant order of the body; from ingestion by humans: blindness, central nervous system symptoms, nausea, loss of appetite, and stillbirths and abnormal pigmentation of infants; in animals; lessened ability of birds to form eggs and decreased litter size.
n6 A Kaiser corporate memo of April 30, 1976 (Complainants' exhibit F) states with respect to PCB's: "Their acute toxicity is low, chronic toxicity is high." The memo lists known toxic effects to include "acne-like skin eruption, pigmentation of the skin and nails, excessive eye discharge, swelling of eyelids and distinctive hair follicles." The memo also states that standard safety precautions were required, including eye protection, non-porous gloves and aprons, and "any skin area contacted should be thoroughly washed with water as soon as possible." A Monsanto guide on the handling of PCB's (Respondent's Exhibit A) also states that "prolonged or repeated skin contact" should be avoided "because of the possible occurrence of a condition called chloracne." Monsanto also provided a sample caution label to be placed on containers of PCB solutions and transformers in which PCB solutions are used.
[*8]
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Dr. Fine acknowledged that the studies he relied on in reaching his conclusion regarding the health hazards of exposure to Aroclor 1016, principally a Japanese study of a 1968 outbreak of PCB poisoning in Japan due to ingestion of PCB contaminated rice oil and a report on a Mobil study of PCB exposed employees, did not involve exposure to the exact biphenyl compound in this case. Exposed populations in the Japanese study exhibited the following symptoms: chloracne, brown pigmentation of the skin and nails, distinctive hair follicles, increased eye discharge, swelling of eyelids, transient visual disturbance, systemic gastrointestinal symptoms including jaundice, low birth weights and skin discoloration in infants born to poisoned mothers. In addition, two stillbirths were reported. In some patients symptoms persisted for three years after PCB exposure terminated. Lloyd et al., Polychlorinated Bipenyls, 18 J. Occupational Med. 109 (1976) (Respondent's Exhibit B). n7 The record in this case does not identify the exact PCB mixture involved in the Japanese poisoning. The Mobil PCB study involved [*9] 92 workers exposed to Aroclor 1254 and observed eight cancers in seven workers, including malignant melanomas and cancer of the pancreas. The study was reported in a letter to the editor in the New England Journal of Medicine on August 19, 1976. Former NIOSH Director Finklea reported these PCB developments in the American Industrial Hygiene Association Journal in October, 1976 (Respondent's Exhibit C). Dr. Finklea noted that although the Mobil study was the first to suggest a correlation between animal or human PCB exposure and skin or pancreatic cancer, hepatomas and hepatocellular carcinomas had been reported in laboratory animals fed Aroclor 1254 and 1260. Dr. Fine also testified that although the exposures in this case are probably lower than those reported in the Mobil study, the skin exposure in this case had already caused mild toxicity. Dr. Fine also noted that the Japanese study suggested that the "minimum toxic dose" for humans is between 0.5 and 2 grams, which, he stated, is at least equivalent to 0.5 to 2 cc of PCB ingested. n8 He testified that for the purpose of comparison there are 242 cc in a cup. In his view the exposures in this case "can be compared with the [*10] levels of exposure" discussed in the literature on PCB toxicity.
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n7 The Lloyd article also noted reported instances of digestive disturbances, face and head edema, burning of the eyes, impotence and hemsturea related to human PCB exposure.
n8 The term "minimum toxic dose" was not defined by Dr. Fine. The National Institute of Occupational Safety and Health's ("NIOSH") 1978 Registry of Toxic Effects of Chemical Substances xxiii (1979) defines "Toxic Dose Low" (TDLo) as:
the lowest dose of a substance introduced by any route, other than inhalation, over any given period of time and purported to produce any toxic effect in humans or to produce carcinogenic, neoplastigenic, teratogenic, or mutagenic effects in humans or animals.
The PCB mixture ingested in Japan was evidently Kanechlor 400, which is 48% chlorine. The 1978 Registry lists a TDLo for toxic effects on skin of 28 mg/kg of body weight by oral ingestion for Kanechlor 400. If DeVilbiss weighed 70 kg. (154 lbs.), then the TDLo for him would be 1.96 grams.
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Judge Usher found that Kaiser failed to comply with 29 C.F.R. § 1910.132(a). He found that the Secretary had failed to prove the violation was serious because the Secretary's expert witness, Dr. Fine. "did not testify with any specificity concerning what level of exposure to Aroclor 1016 would, or even might, have a carcinogenic effect upon humans, although he warned that cutaneous exposure . . . should be avoided completely. . . ." He stated that Dr. Fine had failed to "state an informed opinion" that there is a substantial probability that death or serious physical harm could result from the exposures of DeVilbiss to Aroclor 1016 on 10 or 12 occasions during the five or six-month period in question. The judge cited Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127 (6th Cir. 1978).
The Secretary filed a petition for review of this portion of the judge's decision. The petition was granted by Commissioner Cottine.
II
Before the Commission the Secretary argues that Dr. Fine's testimony establishes that there is no safe level of exposure to PCB's and that there is a substantial probability that death or serious physical harm could result from exposure to PCB's. He relies [*12] on the Sixth Circuit's decision in Hermitage Concrete. He further argues that where a single exposure to a toxic substance would not give rise to serious physical harm, but chronic exposure would, the Commission should, in the absence of evidence of chronic exposure, presume that the measured overexposure was representative of long-term exposure. The Secretary argues that the Commission should characterize Kaiser's failure to comply with the standard as serious because DeVilbiss was exposed to levels of PCB's that if experienced regularly could result in serious physical harm or death.
Kaiser maintains that all the Secretary has shown is that death and serious physical harm could result from exposure to certain levels of PCB's, but not that death or serious physical harm could result from the conditions shown to exist at Kaiser's plant. Kaiser contends that the Secretary's argument amounts to a claim that any exposure to a PCB is serious. Kaiser maintains that the Secretary disavowed this approach in his brief to the court of appeals in Hermitage Concrete and that the Commission has repeatedly rejected it.
The authorized employee representative, the United Steelworkers [*13] of America, Local 5668 ("Union"), also is a party to this proceeding. The union argues that the Secretary has established that as a result of the exposures in this case, employees could, if left unprotected, contract the illnesses associated with PCB exposure. The union maintains that the failure of Kaiser to comply with section 1910.132(a) constitutes a serious violation of the Act because the contraction of virtually all forms of cancer and the more severe forms of skin eruption and eye irritation create a substantial probability that death or serious physical harm could result.
III
With respect to violations of safety standards, the Commission has consistently held that an accident need not be shown to be substantially probable in order to hold that a violation is serious. The record need only show that an accident could have resulted and that, if an accident occurred, death or serious physical harm was substantially probable. See, e.g., Frank Swidzinski Con., 81 OSAHRC 4/E14 9 BNA OSHC 1230, 1981 CCH OSHD P25,129 (No. 76-4627, 1981). Court decisions have also been consistent on this point. See, e.g., East Texas Motor Freight v. OSHRC, 671 F.2d 845, [*14] 849 (5th Cir. 1982); California Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986 (9th Cir. 1975).
We have followed a paralled course with respect to violations of health standards. We have not required that contraction of a serious disease by shown to be substantially probable. Instead, we have inquired whether a disease could result from the violative condition and whether there is a substantial probability of death or serious physical harm if the disease does occur. Thus, in Anaconda Aluminum Co., 81 OSAHRC 27A/A2, 9 BNA OSHC 1460, 1474-77, 1981 CCH OSHD P25,300, p. 31,347-31,349 (No. 13102, 1981), we held that a violation of a specific permissible exposure level for a toxic agent was serious because the level was set to prevent the possible contraction of cancer, a life-threatening disease. The Commission specifically rejected its previous holdings that the Secretary must demonstrate a substantial probability that death or serious physical harm would result from the violative condition. Our approach in Anaconda was consistent with that of the Sixth Circuit in Hermitage Concrete, which pointed out with respect to the contraction of silicosis that the proper inquiry [*15] was whether the cited conditions "might" cause unprotected employees to contract silicosis, and "if they might, whether there was a 'substantial probability' that the result would be serious physical harm or death." 584 F.2d at 131-34 & n.5.
Inasmuch as Kaiser has not been found to have violated a standard with a specific exposure level, we must look to the seriousness of the specific hazards to which the employee was exposed. Mahone Grain Corp., 81 OSAHRC 108/B8, 10 BNA OSHC 1275, 1279, 1981 CCH OSHD P25,836, p. 32,317-2 (No. 77-3041, 1981). Thus, the issue is whether the exposures experienced by Kaiser's employees could cause a disease and, if the disease is contracted, whether there is a substantial probability of death or serious physical harm.
Dr. Fine's unrebutted testimony establishes that Aroclor 1016 is closely related to a number of PCB mixtures that have been associated with human and animal carcinomas. His unrebutted testimony also establishes that malignant tumors of the skin and internal organs could appear in fifteen to thirty years following exposures such as those that occurred in this case, without evidence of acute toxicity. It was for this reason that [*16] Dr. Fine stated that cutaneous exposure to Aroclor 1016 should be prevented entirely.
The record further establishes that chloracne could result from the PCB exposures in this case. In examining whether chloracne constitutes serious physical harm, we note that Dr. Fine characterized it as a "painful" and "serious form of skin eruption." He stated that it would be the next stage in skin toxicity after the reddening of the skin experienced by DeVilbiss. In GAF Corp., 81 OSAHRC 29/A2, 9 BNA OSHC 1451, 1981 CCH OSHD P25,281 (No. 77-1811, 1981), appeal withdrawn, No. 81-4091 (2d Cir. September 3, 1981), the Commission found an employer in serious violation of the Act for exposing its employees to silver compounds that caused irreversible argyria, a permanent, bluish-black discoloration of the skin and eyes. n9 The Commission "reject[ed] the notion that a worker's substantial sacrifice of his or her appearance is anything less than serious." 9 BNA OSHC at 1457, 1981 CCH OSHD at p. 31,246. We find the severity of the harm substantial enough to characterize chloracne as "serious physical harm."
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n9 We note that the documentary evidence in this case, including Kaiser's own corporate memo, includes skin and nail pigmentation as a toxic effect of PCB exposure.
[*17]
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Accordingly, we conclude that the failure to provide any personal protective equipment to protect against employee exposure to PCB is a serious violation of the Act because there is a substantial probability that death or serious physical harm could result from the short-and long-term effects of PCB exposure. n10 See notes 4-7 and accompanying text, supra, for a general discussion on the evidence on clinical manifestations of PCB exposure. n11
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n10 The Secretary requests the Commission to take official notice of the NIOSH publication, Criteria for a Recommended Standard . . . Occupational Exopsure to Polychlorinated Biphenyls (PCBs) (1977), a document evidently not available until after the hearing. The NIOSH document is primarily a compilation of studies and publications, many of which are already part of the record in this case. Because the present record supports the Secretary's characterization, it is unnecessary to take official notice of the document. Accordingly, we decline the Secretary's request.
n11 In Hermitage Concrete Pipe Co., 82 OSAHRC 14/A2, 10 BNA OSHC 1517, 1982 CCH OSHD P25,975 (No. 4678, 1982), on remand from 584 F.2d 127 (6th Cir. 1978), the commission addressed the seriousness of a violation involving excessive exposure to a toxic substance. Wh held that proven exposures at a worksite are presumed to be representative of typical exposures or work conditions in the absence of contrary evidence. The evidence in this case establishes that DeVilbiss received 10 or 12 exposures over a 5 or 6 month period. DeVilbiss also testified that PCB spillage was a regular occurrence when capacitors were moved, exposing not only him but clean-up crews and electricians as well. DeVilbiss stated that as late as January and February of 1977 he observed electricians who worked on the capacitors become contaminated with the same spilled substance. According to DeVilbiss, the electricians he observed in February were wearing "white plastic covered paper suit[s]" that did not prevent the liquid from soaking through. Kaiser stated in its post trial brief that a protective equipment requirement was not adopted at its cited worksite until mid-January, 1977. Accordingly, the evidence establishes continuous employee exposure to a PCB mixture and application of a presumption of representativeness is unnecessary in this case.
[*18]
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Judge Usher found that the violation was an other-than-serious violation and assessed a $210 penalty, the same amount that had been proposed by the Secretary for the alleged serious violation. We conclude that $210 is an appropriate penalty. Accordingly, we characterize the violation as serious with the meaning of section 17(k) and assess a $210 penalty.
SO ORDERED.
DISSENTBY: ROWLAND
DISSENT:
ROWLAND, Chairman, dissenting:
I agree with Judge Usher that the Secretary failed to prove that the violation of section 1910.132(a) was serious. In reaching this conclusion, I do not decide whether the majority's interpretation of section 17(k) of the Act is correct. It is enough to observe that even under the majority view the evidence, particularly the testimony of Dr. Fine, the Secretary's expert witness, does not establish that the exposures received by Kaiser's employee could cause cancer. n12
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n12 The Secretary also asks the Commission to take official notice of the NIOSH criteria document for PCB's. See note 10 of the lead opinion. He made the same request of the judge in his post-hearing memorandum. The judge refused to admit the criteria document, noting that the record in the case was closed and the Secretary had not shown good cause for reopening it. The judge was evidently of the view that taking official notice of the criteria document would unduly delay a final adjudication.
Whether to take official notice is a matter within the discretion of the judge. I cannot say that his decision failed to strike the proper balance between the need for a correct decision and the need for finality in litigation, nor does the Secretary claim that the judge abused his discretion. Moreover, many of the numerous studies referred to in the criteria document were in existence before the hearing. The Secretary should have made an effort to determine what information was relevant and introduced it at the hearing rather than waiting until after the hearing to attempt to put in the entire compendium. See Seattle Crescent Co., 79 OSAHRC 91/A2, 7 BNA OSHC 1895, 1898-99, 1979 CCH OSHD P24,002, p. 29,133 (No. 15242, 1979).
[*19]
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First, Dr. Fine's testimony consisted of little more than conclusions he drew from reading the scientific literature on PCB's. Dr. Fine had never conducted any studies on the effects of PCB's or treated any cases of PCB toxicity. Although Dr. Fine briefly referred to one study on Aroclor 1016, which he did not clearly identify, the study was not directed to the toxic effects of Aroclor 1016. Indeed, Dr. Fine testified that he was unaware of any adequate studies of carcinogenesis in animals from Aroclor 1016. With the exception of a brief account in a medical journal of the Mobil study, the record contains none of the literature on any PCB that Dr. Fine relied upon. While this method of introducing expert opinion may be permissible under Fed. R. Evid. 703, the probative value of Dr. Fine's opinion would have been greater if the literature itself were introduced into evidence or at least described with greater specificity than Dr. Fine described it. In this way, Dr. Fine's conclusions could have been more intelligently evaluated. Cf. Air-Kare Corp., 81 OSAHRC 98/A2, 10 BNA OSHC 1146, 1981 [*20] CCH OSHD P25,758 (No. 77-1133, 1981) (dissenting opinion) (lay opinion testimony).
Second, Dr. Fine's testimony is too indefinite to support the majority's finding. Dr. Fine testified that Aroclor 1016 is similar to Aroclor 1242 and Aroclor 1254, which have been "associated with cancer" in man and animals, because there is a 23% "overlap" between the ingredients of Aroclors 1016 and 1254 and a 88% "overlap" between the ingredients of Aroclors 1016 and 1242. It is apparently for this reason that Dr. Fine concluded that the effects of Aroclor 1016 would be similar to those of the other Aroclors and that exposures such as the ones in this case could cause skin cancer and tumors in fifteen to twenty years. However, Dr. Fine did not testify with any specificity what levels of exposure to Aroclors 1242 and 1254 had resulted in the contraction of cancer. The only study involving employee exposure relied on and identified by Dr. Fine stated that "Aroclor 1254 was used . . . during a nine year period," and that workers were "believed to have been heavily exposed to" it. 295 New England J. Med. 450 (1976). The record evidence, particularly Dr. Fine's testimony, does not afford a basis [*21] to compare the exposures in this case with the exposures relied on by Dr. Fine.
Similarly, Dr. Fine's testimony that the exposures received by Kaiser's employees could be compared to exposures in some of the other studies he researched is unconvincing. Dr. Fine noted that 0.5 to 2 cc was equivalent to 0.5 to 2 grams, which he characterized as a "minimas toxic dose" on the basis of a Japanese study. However, the substance in the Japanese study was evidently not Aroclor 1016. See note 8 supra. In addition, Dr. Fine did not define the term "minimum toxic dose." Assuming as the majority does that the term "minimum toxic dose" may be equated with "toxic dose low," the record still does not show that this dose could have caused serious physical harm. The term "toxic dose low" is defined as "the lowest dose of a substance . . . over any period of time . . . reported to produce any toxic effect." National Institute of OccupationalSafety and Health, 1978 Registry of Toxic Effects of Chemical Substances xxiii (1979) (emphasis added). Toxic effect is defined as "any reversible or irreversible noxious effect on the body." Id. at xxii. Thus, even if DeVilbiss received [*22] the "toxic dose low," there is no way to know whether his exposure could have resulted in serious physical harm. In addition, there is no indication that cancer was the toxic effect suffered in the Japanese exposures. Furthermore, those exposures to PCB were caused by rice oil that was contaminated with PCB's and ingested over a period of months. By contrast, although an unspecified quantity of Aroclor 1016 entered DeVilbiss' mouth on one occasion, there is no evidence of the amountof PCB that he might have swallowed or otherwise ingested. The long-term ingestion noted in the Japanese study is clearly not equivalent to the ingestion, if any, by DeVilbiss. Accordingly, it would be difficult to reach any conclusion as to the effect of exposure to Aroclor 1016 from such data.
Dr. Fine's recommendation of a zero exposure limit for skin exposure is also lacking in probative value. The recommendation was based more on the ease with which nonporous personal protective equipment can be used than on the toxicity of PCB's. Dr. Fine stated, "I would think zero exposure should be the recommendation [for skin exposure], since personal protective equipment can always be used to reach that [*23] objective."
In view of these facts and the Secretary's failure to elicit from Dr. Fine testimony that fully explains the significance of the similarities among PCB's or that compares the exposures received in this case with exposures that resulted in the contraction of cancer, I must agree with the judge that Dr. Fine "did not testify with any specificity concerning what level of exposure to Aroclor 1016 . . . might have a carcinogenic effect upon humans" and that he did not state "an informed opinion." Accordingly, I conclude that the evidence does not support the conclusion that the exposures received by Kaiser's employee could cause cancer.
The majority's conclusion with respect to chloracne is similarly unsupported. Dr. Fine's testimony as to chloracne was very limited. He stated, without explanation, that chloracne is a painful and "very serious form of skin eruption," that "looks like teenage acne." Dr. Fine never explained what he meant by the conclusory term "very serious" nor did he testify as to the degree of pain experienced during this sort of skin eruption. On the whole, Dr. Fine did not describe chloracne with sufficient specificity to enable the Commission to make [*24] an informed judgment on the severity of chloracne. In sum, the record fails to show that chloracne causes the sort of discomfort or deprivation of bodily function contemplated by section 17(k). See GAF Corp., 81 OSAHRC 29/A2, 9 BNA OSHC 1451, 1459, 1981 CCH OSHD P25,281, p. 31,248 (No. 77-1811, 1981) (dissenting opinion), appeal withdrawn, No. 81-4091 (2d Cir. September 3, 1981).
Accordingly, I conclude that Kaiser's failure to comply with 29 C.F.R. § 1910.132(a) was not shown to be serious within the meaning of section 17(k). I also conclude that the judge's penalty assessment of $210 was correct, and I note that Kaiser does not except to this assessment. Judge Usher's decision should therefore be affirmed.