“SECRETARY OF LABOR,Complainant,v.SCHULTE CORPORATION,Respondent.OSHRC Docket No. 80-2666_DECISION_Before: BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).A decision of Administrative Law Judge Joe D. Sparks is before theCommission for review. The judge found that Schulte Corporation(\”Schulte\”) violated the occupational safety standards at 29 C.F.R. ??1910.94(d)(9)(v), 1910.94(d)(9)(viii), and 1910.94(d)(9)(vii). Hefurther found that the violation of section 1910.94(d)(9)(v) was seriousin nature. The Commission agrees with the judge that Schulte violatedthe three standards but is divided on whether he properly classified theviolation 1910.94(d)(9)(v) as serious.[[1]]Pursuant to an employee complaint, a compliance officer from theOccupational Safety and Health Administration inspected Schulte’sworkplace. Schulte manufactures bathroom accessories includingfixtures. To finish these fixtures, Schulte electroplates them. Schulte’s electroplating process requires the fixtures to be immersed ina series of tanks filled with chemical solutions. The tanks containdifferent chemical solutions depending on the type of finish needed forthe part. Each chemical solution has a different pH level — a measurewhich gauges the relative acidity of the solution. Depending on howacidic or alkaline the solutions are, employees could suffer chemicalburns if the solution contacts their skin or eyes. There are fiveprincipal electroplating lines at the Schulte workplace. Two of thelines are automatic. Racks of parts are dipped into a series of tanksby machines. The other three lines are hand-dip lines which requireemployees to insert and remove racks of parts manually. A rack of partsweighs between 10 and 20 pounds._Periodic Examinations_During the inspection, the compliance officer was told that some of thetanks contained chromic acid, an extremely corrosive and acidic solutionwhich can cause erosions, ulceration’s and perforation of the nasalseptum. Although Schulte employees were given pre-employment physicalexaminations, they were not given any subsequent exams. Because theemployees exposed to chromic acid were not provided with periodicexaminations, the Secretary cited Schulte for violating 29 C.F.R. ?1910.94(d)(9)(viii).[[2]]Judge Sparks found that Schulte violated 29 C.F.R. ? 1910.94(d)(9)(viii)because Schulte admitted that some of its chemical solutions containedchromic acid and that its employees were not given physical examinationsbeyond their pre-employment physical. Because employees were rotated atthe different work stations and the incidence of chemical splashes wasnot very high, the judge found that the chance of nasal ulceration wasremote. He therefore found that the violation was nonserious andassessed no penalty.We affirm this portion of Judge Sparks’ decision. The evidence isunrebutted that some of the tanks contained chromic acid. AlthoughSchulte claims that the Secretary never established that the solutionsin the tanks were strong enough to create a hazard, the complianceofficer testified that the solution in at least one tank on the day ofthe inspection contained one tenth of one percent chromic acid. TheSecretary’s expert witness then specifically testified that an employeecould receive chromic ulcers from direct contact with a solutioncontaining one tenth of one percent chromic acid and that it was not thestrength of the solution so much as the presence of the chromic ion inthe chromic acid which presented the hazard.The employees who worked at the tanks containing chromic acid wereexposed to the danger of contacting the chromic acid and thuscontracting chromic ulcers. The danger of direct contact with chromicacid was established by the evidence that nine employees had receivedinjuries from contact with chemical solutions during the past year. Under the circumstances, Schulte should have conducted periodicexaminations of those employees working at tanks containing chromicacid. The evidence established that Schulte did not conduct suchperiodic examinations and thus violated the standard.[[3]]_Eyewash Facilities_During the inspection, the compliance officer also noted that theantique line was 60 feet from the closest eyewash and the chrome-nickelline was 125 feet from an eyewash. The pathways to both eyewashes werepartially obstructed. Because the Secretary believed that a worker whowas splashed with the acidic chemical solutions contained in the tankscould not reach the water before the chemical caused some kind ofinjury, the Secretary cited Schulte for a violation of 29 C.F.R. ?1910.94(d)(9)(vii).[[4]]In finding a violation of section 1910.94(d)(9)(vii), Judge Sparksrelied on testimony from Schulte’s superintendent of plating, Mr.Klimecki, that if an employee was splashed with nitric acid, theemployee should remove it \”very quickly.\” Klimecki estimated that theacid should be washed off within \”a few seconds — 15-30 seconds.\” Judge Sparks said, \”Considering the short time within which to wash offthe chemicals before injury, the location of the required clean coldwater is not sufficiently near to comply with the cited regulation.\” Judge Sparks characterized the violation as nonserious and assessed nopenalty.We affirm this portion of the judge’s decision. In _Plessey, Inc_., 74OSAHRC 77\/C1, 2 BNA OSHC 1302, 1974-75 CCH OSHD ? 18,907 (No. 946,1974), the Commission found that the eyewash standard at 29 C.F.R. ?1910.94(d)(9)(vii) was not vague when examined in light of the facts ofthe case and the injuries that the standard was designed to prevent. The Commission considers the strength of the corrosive material and theconfiguration of the work area when deciding whether the standard hasbeen violated. _Gibson Discount Center_, 78 OSAHRC 30\/C1, 6 BNA OSHC1526, 1527, 1978 CCH OSHD ? 22,669 pp. 27,357-58 (No. 14657, 1978). Inthis case, the solutions in both the chrome-nickel and antique lineswere described as \”very acidic.\” The closest water to the antique linewas 60 feet away. The closest water to the chrome-nickel line was 125feet away. Both routes were partially obstructed. We agree with thejudge’s finding of fact that under the circumstances employees splashedwith the solutions would not be able to get to the rinse water in theshort amount of time available to prevent a chemical burn._Eye Protection_During the inspection, the compliance officer also observed Schulteemployees dipping racks of parts into solutions of cyanide salts,sulfuric acid, sodium hydroxide, chromic acid and nitric acid. Inaccordance with Schulte’s policy, the employees were wearing rubberaprons, chemical gloves, boots and safety glasses with side-shields whenthey dipped the racks or removed the racks from the tanks. Theemployees were not wearing tight-fitting goggles or face shields. TheSecretary believed that Schulte employees were exposed to the danger ofthe chemicals in the tanks splashing up under the safety glasses withside shields and into the employees’ eyes. This hazard, according tothe Secretary, could be abated if the employees wore tight-fittingchemical goggles. The Secretary cited Schulte for an alleged seriousviolation of 29 C.F.R. ? 1910.94(d)(9)(v).[[5]]Judge Sparks found a violation of the standard. He concluded thatemployees were exposed to \”a danger of splashing\” when they added partsto the chemical solutions. Since Schulte’s employees did not weareither the tight-fitting goggles or face shields required by thestandard, Judge Sparks found a serious violation. However, the judgelowered the proposed penalty of $490 to $100 because the recorddemonstrated that the safety glasses worn by Schulte’s employees were\”reasonably effective.\”We agree that the Secretary has established a violation of 29 C.F.R. ?1910.94(d)(9)(v). Schulte argues that the language in the standard –\”when additions are made to the tanks, or when acids and chemicals areremoved from the tanks\” — limits the standard’s applicability tosituations in which employees are engaged in adding chemicals to orremoving them from the tanks. Schulte contends that no violation can befound where, as here, employees are dipping racks of parts into thetanks.[[6]] We reject this argument. The Commission has held that thewords \”for example,\” which precede the language in the standard on whichSchulte relies, mean that the standard’s requirement for tight-fittingchemical goggles or face shields is not limited to employees addingchemicals to or removing chemicals from tanks. _Pratt & WhitneyAircraft_, 81 OSAHRC 39\/A2, 9 BNA OSHC 1653, 1663, 1981 CCH OSHD ?25,359 p. 31,510 (No. 13401, 1981). The standard also applies when adanger of splashing arises from adding parts to a tank. _Id_.Schulte also argues that the Secretary is interpreting the standard sothat employees must wear tight-fitting goggles or face shields wheneverthere is the mere possibility of splashing. This broad reading of thestandard, according to Schulte, is not justified by the language of thestandard. The Commission agrees that the standard’s language \”wheneverthere is a danger of splashing\” requires the Secretary to demonstratethat there is more than a theoretical possibility that an employee couldbe splashed with a chemical solution. However, in this case, a dangerof splashing was established by the Secretary’s evidence that nineemployees had received chemical burns in the past year and that at leastone employee was splashed in the eyes when lowering a rack of parts intoa tank containing chemical solutions. The Secretary established thatthe employees working at chemical tanks were exposed to much more thanmerely a theoretical possibility of being injured by a chemical splash. Schulte thus violated the standard by not requiring employees doing suchwork to wear tight-fitting chemical goggles or face shields.The Commissioners disagree, however, on the severity of the violation. Commissioner Cleary would affirm Judge Sparks’ finding of a seriousviolation and the judge’s assessment of a $100 penalty. If an employeewas splashed in the eye with the corrosive material in the tanks, theemployee could sustain a serious eye injury, even blindness. Violationof this standard is not a trifling matter, and characterizing theviolation as de minimis is inappropriate. _Wright & Lopez, Inc_., 81OSAHRC 92\/D10, 10 BNA OSHC 1108, 1981 CCH OSHD ? 25,728 (No. 76-256,1981); _Southwestern Electric Power Co_., 80 OSAHRC 81\/C7, 8 BNA OSHC1974, 1980 CCH OSHD ? 24,732 (Nos. 77-3391 and 77-3890, 1980).Chairman Buckley would find the violation de minimis because abatementof the violation would have only a negligible effect on the safety ofemployees. Schulte employees wore safety glasses with canvas side flapswhile adding parts to the tanks.[[7]] According to the Secretary, theseglasses did not provide the employees with sufficient protection becausechemicals could still splash up under the glasses and into theemployees’ eyes. Although the Secretary suggested that the employeeswear tight-fitting chemical goggles, the standard permits employers theoption of using either tight-fitting chemical goggles or face shields. Testimony at the hearing revealed that Schulte had previously requiredemployees to wear tight-fitting goggles when adding chemicals to thetanks, but the goggles fogged over and employees complained of headacheswhen wearing them. Schulte switched to requiring employees to wear faceshields when adding chemicals to the tanks. Based on this experience,it is evident that, if Schulte is required to have employees dippingparts into the tanks wear either goggles or face shields, both Schulteand its employees will choose the face shields — a permissible choiceunder the standard. Face shields, like safety glasses with sideshields, would protect employees against a direct splash to the eyes,but the employees would still be susceptible to chemicals splashingunderneath the face shield because a face shield does not provide atight seal around the eyes. The safety of the Schulte employees wouldnot be enhanced by wearing face shields instead of the safety glasseswith side shields. Where abatement in accordance with the terms of astandard would not improve employee safety or health, a violation isproperly characterized as de minimis. _Clifford B. Hannay &_ _Son,Inc._, 78 OSAHRC 12\/A2, 6 BNA OSHC 1335, 1978 CCH OSHD ? 22,525 (No.15983, 1978).Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action canbe taken by the Commission with the affirmative vote of two members. The two Commission members are divided on the characterization of theviolation of 29 C.F.R. ? 1910.94(d)(9)(v). To resolve this impasse,the members have agreed to affirm that portion of the judge’s decisionbut accord it the precedential value of an unreviewed judge’s decision. _See_ _Life Science Products Co_., 77 OSAHRC 200\/A2, 6 BNA OSHC 1053,1977-78 CCH OSHD ? 22,313 (No. 14910, 1977),_aff’d sub nom. Moore v.OSHRC_, 591 F.2d 991 (4th Cir. 1979).Accordingly, the judge’s decision is affirmed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: MAR 21 1985————————————————————————FOOTNOTES:[[1]] As established by the Act, the Commission is composed of threemembers. Section 12(a), 29 U.S.C. ? 661(a). Currently, the Commissionhas two members as a result of a vacancy.[[2]] 29 C.F.R. ? 1910.94(d)(9)(viii) provides,Operators with sores, burns or other skin lesions requiring medicaltreatment shall not be allowed to work at their regular operations untilso authorized by a physician. Any small skin abrasions, cuts, rash, oropen sores which are found or reported shall be treated by a properlydesignated person so that chances of exposures to the chemicals areremoved. _Workers exposed to chromic acids_ _shall have a periodicexamination made of the nostrils and other parts of the body to detectincipient ulceration_. (Emphasis added.)[[3]] Schulte claims that the standard is vague because it does notdefine the term \”periodic examinations.\” In response to aninterrogatory, the Secretary said that the examinations should beconducted yearly. No evidence was presented at the trial concerning howoften the examinations should take place. The need for examinationswill depend on many factors including the strength of the chemicalsolutions and the length of exposure. Without defining the term\”periodic,\” we note that Schulte never gave its employees anyexaminations beyond their pre-employment physical and so violated thestandard.Schulte also takes issue with the Secretary’s claim that theexaminations must be performed by medical personnel. Again, no evidencewas presented on whether it is necessary or required that medicalpersonnel perform these examinations and we do not decide whethermedical personnel must perform these examinations in order to conformwith the standard. In this case, Schulte performed no examinations ofany kind and therefore violated the standard.[[4]] 29 C.F.R. ? 1910.94(d)(9)(vii) provides,Near each tank containing a liquid which may burn, irritate, orotherwise be harmful to the skin if splashed upon the worker’s body,there shall be a supply of clean cold water.[[5]] 29 C.F.R. ? 1910.94(d)(9)(v) provides,Whenever there is a danger of splashing, for example, when additions aremade to the tanks, or when acids and chemicals are removed from thetanks, the employees so engaged shall be required to wear eithertight-fitting chemical goggles or an effective face shield.[[6]] Schulte has attached to its brief an affidavit which, the companyasserts, demonstrates that the drafters of the standard intended it tohave the meaning now urged by Schulte. Schulte was in possession of theaffidavit at the hearing yet offers no persuasive reason why it failedeither to attempt to introduce the affidavit at that time or to call theaffiant to testify. Treating the inclusion of the affidavit as a motionto reopen the record, we deny the motion. _See_ _Seattle CrescentContainer Service_, 79 OSAHRC 91\/A2, 7 BNA OSHC 1895, 1898-99, 1979 CCHOSHD ? 24,002 pp. 29,132-33 (No. 15242, 1979). We further note that,under Commission Rule 69, 29 C.F.R. ? 2200.69, affidavits are admissiblein evidence only if the parties agree to their admission.[[7]] The record shows that the one employee who was splashed in theeyes and injured was not wearing safety glasses when adding parts to atank. However, during the inspection that led to the citation, theemployees engaged in adding parts were wearing safety glasses with sideshields, and the record shows that this was Schulte’s normal practice. The Secretary has not argued that there was a violation based on theincident in which the employee was injured and there is no evidence thatthis incident was not simply an isolated, unpreventable occurrence. Therefore, although the incident is relevant to whether the operationpresented a danger of splashing, it does not form a part of theviolation and does not show that the safety glasses with side shieldswere inferior to face shields in protecting employees against beingsplashed in the eye.”