CORHART REFRACTORIES COMPANY

OSHRC Docket No. 6184-P

Occupational Safety and Health Review Commission

December 20, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marvin Tincher, Office of the Solicitor, USDOL

James N. Williams, Jr., for the employer

Manny H. Frockt, for Intervenor

OPINION:

DECISION

BY THE COMMISSION:

This case is before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., to review a decision of Administrative Law Judge John J. Larkin. In his decision, Judge Larkin granted four petitions of Corhart Refractories Company to extend the time for abatement and ordered abatement of the alleged silica dust violation by December 31, 1977.

Judge Larkin held that the petitioner had made a prima facie case for extension of the abatement date by showing that it had acted in good faith, that the technology to abate the alleged violation was nonexistent, and that the petitioner "ha[d] been placed on its own ingenity to find or invent such controls." The Judge further found that neither the Secretary of Labor nor the intervenor had rebutted this prima facie case.

The Commission has reviewed the Judge's decision and the post-hearing submissions of the petitioner and [*2] intervenor. We adopt the findings of fact and conclusions of law made by Judge Larkin and affirm his decision for the reasons given by him. n1

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n1 Chairman Cleary would require the employer to consult with Local 14084, United Steelworkers of America in regard to abatement of the violative conditions. See General Electric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974-75 CCH OSHD para. 19,567 (No. 2739, 1975), rev'd in part on other grounds, 540 F.2d 67 (2d Cir. 1976).

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Accordingly, the decision of the Administrative Law Judge is affirmed.