ITT GRINNELL CORP.,
Petitioner,

v.

SECRETARY OF LABOR,
Respondent.

OSHRC Docket No. 79-3185-P

SECRETARY OF LABOR,
Complainant,

v.

ITT GRINNELL CORP.,
Respondent,

INTERNATIONAL MOLDERS AND
ALLIED WORKERS UNION.
Authorized Employee
Representative.

OSHRC Docket No. 80-1620

Decision

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:

These two related cases are consolidated by the Commission for purposes of decision. Docket No. 79-3185-P involves a decision of Administrative Law Judge George Taylor which is before us for review under section 12 (j), 29 U.S.C. 661(1), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 1 651678 ("the Act"). In that decision, Judge Taylor denied a petition by ITT Grinnell Corp ("ITT") for an extension of the abatement dates specified by the Secretary of Labor ("the Secretary") following a citation alleging ITT's noncompliance with the health standard at 29 C.F.R. 1910.1000(e). [[1/]] Judge Taylor based his denial on ITT's lack of a good faith effort at compliance with the citation's abatement requirements in that ITT had not implemented any medical surveillance program during the one-year abatement period specified in the citation. The principal issue in the case is whether ITT may be required to take certain appropriate interim measures to protect its employees as a condition of being granted a request for an extension of the abatement daces. We conclude that ITT may be required to take appropriate interim protective measures. However, under the circumstances of this case, we conclude that ITT's petition for modification of abatement should he granted.

Docket No. 80-1620 concerns the same citation involved in Docket No. 79-3185-P. The case is before us on our acceptance of Judge Taylor's certification of interlocutory appeal. Commission Rule of Procedure 75(b), 29 C.F.R. 2200.75(b). Judge Taylor denied a motion by ITT for dismissal of a Notification of Failure to Correct the violations alleged in item 1b. The notification had been issued by the Secretary subsequent to a reinspection of ITT's facilities on a date following the final abatement date specified in the citation. We reverse the judge and grant ITT's dismissal motion.
Docket No. 79- 3185-P

I

Following an inspection of ITT's Columbia. Pennsylvania iron foundry, the Secretary issued three citations to ITT on August 4, 1978. Only subitem 1b of repeated citation 2 is pertinent to the case on review. Subitem 1b alleged ITT's failure to comply with section 1910.1000(e) in that feasible administrative or engineering controls were not determined and implemented to reduce employee exposure to respirable quartz-containing (silica) dust at its cupola foundry and electric foundry.

Subitem 1b specified the following three abatement requirements:

Step 1 - A written detailed plan of abatement leading to the complete abatement of this item shall be submitted to the Area Director. Such a plan shall: a) Employ the use of qualified engineering personnel; b) Include detailed engineering studies and their results; c) Outline the ordering of equipment and materials and completion of the design phase; and d) Outline dates for the anticipated implementation of the plan.

Step 2 - Feasible engineering controls and/or administrative controls shall be determined.

Step 3 - Abatement shall be completed by implementation of feasible engineering and/or administrative controls and its effectiveness at achieving compliance verified. Ninety-day progress letters are requested during the abatement period.

The required abatement date for steps 1 and 2 was January 4, 1979; the abatement. date for step 3 was August 4, 1979. No requirement for a medical surveillance program was specified.

ITT did not contest citation 2 or its notification of penalty, and the citation became a final order of the Commission. 29 U.S.C. 659(a). On May 11, 1979, however, ITT submitted a petition for modification of the abatement dates ("PMA") listed in citation 2. The PMA requested a January 1, 1981 abatement date to implement the required controls in the electric foundry and an August 1, 1982 abatement date to implement the required controls in the cupola foundry.

By letter dated May 30, 1979, the OSHA Area Director for the Harrisburg, Pennsylvania office wrote ITT for additional information to be used to review ITT's PMA. Page 1 of that letter contains the following paragraph:

(2) Medical Program (Silica Dust Exposure) - We request a copy of ITT's medical program as it relates to silica dust exposure. In this regard, we expect that diagnostic techniques such as 14" by 17" chest x-ray examinations and pulmonary function testing will be addressed. Before an employee is permitted to work in an area where excessive silica dust concentrations exist or wear respiratory protection, the medical program should provide that a written physician's opinion be obtained for each employee relative to the suitability for such exposure or respiratory use.

Pursuant to the Area Director's request, ITT forwarded copies of its respirator protection program by letter dated June 13, 1979. Page 4 of that program contains the following pertinent information.

VI. Medical

1. All employees required to utilize respiratory protection devices will be examined by the Medical Staff, in accordance with the guidelines established by the Company's consulting physician. A determination of physical ability to perform the work and use the equipment will be made.

2. Employees required to work in respirator areas will be examined at least once annually in accordance with guidelines established by the Company's consulting physician.

3. The Safety & Health Staff will provide the Medical Staff with a current list of respiratory areas.

Also, ITT's response indicates its employees in the cited areas were required to wear respirator protection pending implementation of the required controls.On August 3, 1979, the Secretary filed an Objection to Petition for Modification of Abatement Date with the Commission. On page 7, the Secretary stated that he opposes ITT's petition because

the Petitioner's [ITT's] medical program as it pertains to silica dust exposure is insufficient to protect exposed employees from the hazards of said exposure during the lengthy abatement period requested. Specifically. Respondent contends that the medical program should mandatorily provide that chest x-ray and pulmonary function studies be conducted on any employee who works or has worked in any of the cited areas unless said employee objects to said diagnostic testing.

II

The hearing on the matter was held before Judge Taylor on September 17, 1979. The parties stipulated that, except for implementing an adequate medical surveillance program, ITT had made a good faith effort to comply with the abatement requirements in citation 2, that abatement had not been completed because of factors beyond ITT's control, and that ITT's future plans for administrative and engineering controls were satisfactory.

The parties also stipulated that the only issue to be resolved at the hearing was whether chest x-rays and pulmonary function tests ("PFTs") would be offered exposed employees automatically, unless medically inadvisable, or whether the x-rays and PFTs would be offered to exposed employees only at the discretion of ITT's plant physician. The Secretary's particular demands, only made known to ITT as of the date of the hearing, were that employees exposed to silica dust be offered chest x-rays every three years and PFTs every year until ITT has implemented the required engineering and administrative controls.

Testimony at the hearing provides a description of the disease silicosis and, primarily, offers opinions on the means of diagnosing the disease. Employees working in areas of silica dust concentrations inhale the dust. The very fine particles of the dust work their way down into the air sacs of the employee's lungs. Deposits of the silica dust on the air sacs cause a scarring of the lungs in a slow process that is aggravated by continued exposure to silica dust, but continues even after exposure to silica dust stops. Diagnosis of silicosis before a considerable amount of scarring occurs is difficult and the methods of diagnosing the disease differ. Early diagnosis is important, however, to prevent silicosis-caused disability.

Dr. Grace Ziem, a physician and assistant professor at Johns Hopkins University in occupational health who testified for the Secretary, stated that there are four essential elements to a program to detect silicosis. The elements are PFTs, x-rays, physical examinations, and questionnaires eliciting information on the personal, family, and employment history of employees. She testified that in the vast majority of instances chest x-rays and PFTs would record the existence of silicosis at an earlier stage than would physical examinations and questionnaires. It was her recommendation that ITT foundry employees be given PFTs automatically on an annual basis and be given x- rays automatically every three years. Although she acknowledged that even one x-ray could possibly cause cancer, she testified that the benefit to a person of detecting silicosis at an early point was significantly greater than the hazard from the small amount of radiation received in getting x-rays every three years. She also stated that doing moderate to heavy work while wearing a respirator at a hot foundry produces increased breathing and heart rate; the resultant potential strain on the heart and the lungs of the employees placed at risk by such exposure should be evaluated by the most sensitive methods of evaluation available, particularly PFTs.

Dr. Kenneth Siegesmund, a medical research expert and associate professor of anatomy at the Medical College of Wisconsin who testified for ITT, stated that there is really no good method of diagnosing silicosis except by the biopsy method of cutting a tiny piece of lung tissue and determining the amount of silica present in it. He testified that chest x-rays should not be given automatically and should only be given when a physician has ample evidence that it is actually necessary. Such evidence should come from PFTs, which Siegesmund stated were justified on a regular basis, physical examinations, personal histories of the patient and a knowledge of the diseases contracted and silica exposure experienced by the patient. Dr. Siegesmund testified that automatic x-rays were unwise because of the problems with x-rays, including the fact that even one x-ray could cause cancer and the fact that silicosis could not be diagnosed by x-rays until the very late stages of the disease. Dr. Siegesmund did testify, however, that X-rays were not as risky as lung biopsies.

Dr. Siegesmund testified that radiologists classify different stages of silicosis according, to the visibility of nodules, or spots, on x-rays. Stage 1 does not manifest nodules on x-rays. Dr. Siegesmund did not know of any radiologist who would make a diagnose of silicosis during stage 1. Stage 2 manifests tiny modules and may not be reached until the fourth or fifth year after exposure, but is difficult to diagnose accurately by x-ray because about 15-20 other diseases mimic silicosis at this stage. Stage 3 is reached in anywhere from four to fifteen years after initial exposure and displays very large nodules that make it possible to reasonably diagnose the disease. By that time, however, symptoms would have manifested themselves. One of the first symptoms that would appear is a shortness of breath, and shortness of breath, Dr. Siegesmund testified, would be shown on PFTs.

Dr. Jacob Weinberg, ITT's consulting physician who practices general medicine, testified that he was opposed to the administration of x-rays without his discretion. His opinion was that x-rays were not informative in that the effect of silica on a lung takes years to develop. Dr. Weinberg stated that even after an employee had been exposed to silica for about five years, a radiologist would be loathe to diagnose a condition as silicosis, as opposed to some other disease, from an x-ray. Dr. Weinberg did testify, however, that he would consider ordering x-rays for employees exposed to silica for five to ten years. He further indicated that the Secretary, who had at one time demanded that ITT provide x-rays annually, was thereby seeking to institute a radiation hazard that was greater than any benefit that might be received from the information revealed by the x- rays. Dr. Weinberg testified that x-ray radiation was cumulative and that enough x-rays could cause cancer. He also conceded, however, that it was possible for x-rays to reveal nodulation consistent with silicosis without a patient having exhibited symptoms of silicosis like coughs, fatigue, and shortness of breath. He did not think that a chest x-ray would show solicitor nodules before seven or eight years of exposure to a dust-laden atmosphere. Finally, Dr. Weinberg testified that he could not see any reason for routinely conducting PFTs, and that PFTs were meaningless unless a patient had a cough. But he also testified that he would not hesitate to give PFTs every three months to those employees working in areas of excessive silica dust concentrations that had respirator problems. PFTs disclose lung dysfunction's and show if a person has diminished pulmonary capacity.

ITT's medical surveillance program, as it was presented by the testimony at the hearing, included the presence at the plant of ITT's consulting physician for an hour a day, or longer if necessary, four days a week. All employees were required to complete health questionnaires designed to elicit the employees' own and family health history and the employees' occupational history. The questionnaires were analyzed by ITT's physician and, if they revealed possible health problems like coughs, asthma, past operations affecting an employee's chest, or a work history involving exposure to areas of dust, those possible problems would be further investigated by the physician. If the physician determined that chest x-rays and/or PFTs were necessary, ITT was willing to offer those services to the employees to whatever extent was necessary. All employees were given pre-employment physical examinations which included chest examinations and chest x-rays. Chest x-rays were available to employees after the pre-employment physical examination on the recommendation of the physician in situations including those where employees had symptoms of diseases, where there were changes in the daily habits of the employees, or where anything suspicious was discerned from the chests of the employees. Any employees specifically requesting chest x-rays would be examined by the physician and, if there was no health reason why an employee should not be given an x-ray, the x-ray would be given.

Further, ITT indicated a willingness to annually examine all employees required to work in areas of the plant where the employees were required to wear respirators. ITT would make a determination of the physical ability to perform the required work and to use particular respirators. Employees with known respirator problems might be offered PFTs as often as every three months in the discretion of Dr. Weinberg.

III

Judge Taylor, in his decision, stated that section 10(c) of the Act, [[2/]] 29 U.S.C. 659(c), requires an employer petitioning for modification of an abatement date to show "a good faith effort to comply with the abatement requirements of a citation," and further that he considered the question of implementation of an adequate medical surveillance program to be relevant to ITT's good faith here. The judge found silicosis is a serious disease that could cause death, and that early detection is important in minimizing the adverse effects of silicosis. He concluded ITT had not made a good faith effort to abate the violative conditions because it had not implemented any medical surveillance program during the one-year abatement period permitted by the original citation. Absent proof of any medical program, the judge found it unnecessary to resolve whether chest x-rays should be automatically offered on a periodic basis or whether they should be offered only when ITT's physician deemed them medically advisable. The judge indicated, however, that the evidence established that ITT should have implemented a medical surveillance program with the following components: 1) annual physical examinations by ITT's consulting physician who would review the medical histories of exposed employees as updated by answers to a questionnaire about the physical condition of the employees, 2) annual PFTs for exposed employees, and 3) periodic chest x-rays for employees exposed to silica dust for seven years or more.

Finally, the judge rejected an argument by ITT that the Secretary could not require PFTs or x-rays because the Secretary has not promulgated a standard requiring them in the circumstances of this case. The judge noted that this case does not concern whether ITT had been properly cited for failing to offer chest x-rays and PFTs to its employees. Instead, the matter for resolution is whether ITT's PMA should be granted and the burden of proof is on ITT to show that it acted in good faith. The judge concluded that ITT's interim medical surveillance program was relevant to ITT's good faith and could be considered in deciding whether to grant the PMA even though no standard requiring such a program had been promulgated.

IV

A.

ITT petitioned for review of the judge's decision and former Commissioner Barnako granted the petition. The principal issue raised in the petition is whether the judge erred in concluding that ITT's unwillingness to implement the medical surveillance program sought by the Secretary demonstrated a lack of good faith so as to justify denial of the PMA.

B.

ITT argues in its review brief that the Commission may not approve the Secretary's program because section 6(b)(7) of the Act, 29 U.S.C. 655(b)(7), permits the Secretary to require medical examinations only upon promulgation of a standard.[[3/]] According to ITT, the Secretary's action in seeking to require medical examinations in the absence of a standard is arbitrary, and the Commission has the authority to prevent the Secretary from imposing such a requirement. That authority, ITT argues, stems from the third sentence of section 10(c) of the Act, supra, which provides that the Commission may issue an order affirming or modifying the abatement requirements in a PMA case. The Commission must be able to modify the Secretary's abatement demands on an employer, ITT contends, or the Secretary could freely make unreasonable demands and be beyond the Commission's scope of review in PMA proceedings.

ITT contends the judge erred in finding that it had not demonstrated good faith because it had not implemented a medical program since issuance of the citation. ITT points out that the stipulated issue was not what ITT had done towards implementation of a medical program but what it would do in that regard in the future. ITT also argues that the judge himself did not approve the Secretary's requirement for annual x-rays, so ITT's refusal to implement that requirement did not demonstrate a lack of good faith. In any event, with respect to the three-or-four month period before the hearing when ITT knew the Secretary wanted ITT to offer annual x-rays and ITT was unwilling to do so, ITT resisted the demand in good faith because the demand was made by nonmedical personnel, did not have any legal basis in the Act, and ITT's physician had found the demand medically unwise.

C.

The Secretary, in his review brief, argues that section 10(c) of the Act broadly places in issue all "abatement requirements of a citation" and confers blanket authority for an order "affirming or modifying the abatement requirements" in a PMA proceeding. The Secretary also argues that the criteria which Congress directed be considered in determining the appropriateness of an abatement date necessarily involve evaluation of an employer's interim abatement efforts. Those criteria are the good faith efforts of an employer to comply with the abatement requirements and the consideration of whether tile failure to complete abatement is because of factors beyond an employer's control. Each of these criteria, the Secretary contends, involves an assessment of the steps taken by an employer short of total abatement. The Secretary also points out that both he, by the regulation at 29 C.F.R. 1903.14a(b)(1) and (4),[[4/]] and the Commission itself, by procedural rule 34(b)(1) and (4), [[5/]] contemplate that proceedings involving PMAs entail analysis of an employer's total abatement efforts, including interim protective measures taken while permanent abatement is being accomplished. The Secretary argues that these proceedings are analogous to those associated with an application for a temporary variance under section 6(b)(6) of the Act, 29 655(b)(6), in that in each modifications are sought of abatement responsibilities and compliance dates.

In rejecting ITT's argument that the Secretary's insistence upon ITT's compliance with the interim medical program amounts to the improper promulgation of a standard, the Secretary contends that it does no such thing in that the interim plan is not generally designed for all employers but is limited in effect to ITT and in duration to the extended abatement period.

Further, the Secretary contends, the fact that citation 2 did not specifically reference the need for a medical surveillance program does not make his subsequent requirement of one arbitrary. His decision as to the specifics of an interim plan was dictated by the facts in this case and ITT's ensuing petition for a lengthy extension of the abatement period.

The Secretary concedes the correctness of ITT's assertion that this case presents the narrow issue of whether ITT's PMA should be denied on the basis of its prospective unwillingness to administer periodic x-ray and annual PFT examinations. The Secretary states that "under the circumstances of this case, where the petitioner was not put on notice of the necessary specifics of a medical plan until the Secretary objected to its PMA, we do not believe that the Petitioner's failure to implement x-ray and PFT examinations before such time, by itself, establishes a lack of good faith." [[6/]] The Secretary also concedes that, except for the issue of the medical surveillance plan, ITT's good faith is not being challenged. But the Secretary also states that the judge's finding of a lack of good faith is supported by the record. ITT failed to implement any medical program, the Secretary argues, even though the cited standard refers to the interim requirements of 29 C.F.R. 1910.134, and even though Commission rule 34(b)(4), supra, as well as the regulation at section 1903.14a(b) (4), supra, refer to interim protection.

The Secretary also argues that the record supports the judge's findings on the components of an interim medical program, i.e., annual physical examinations and PFTs, and periodic chest x-rays for employees exposed to silica dust seven years or more. He argues that all the witnesses agreed that physical examinations, supplemented by personal, medical and work histories, would aid in the diagnosis of silicosis. He also argues that, for the most part, there was agreement on the need for annual PFTs as part of the interim medical surveillance program. He further argues that there was ample evidence to support the judge's finding on the necessity for periodic x- rays to employees with more than seven years of exposure to silica. He states the evidence shows that the development of silicosis may usually be accurately traced by a review of chest x-ray examinations, and that administering x-rays once every three years reflects a compromise between health risks associated with x-rays themselves and health risks associated with the failure to detect silicosis early enough to prevent the aggravation of the disease caused by continued exposure to silica.

V

A.

At the outset, it is necessary to set forth the respective roles of the Secretary and the Review Commission in PMA proceedings. An employer who seeks an extension of an abatement date must file a petition requesting the extension with the Area Director of the U.S. Department of Labor who issued the citation. The employer must also provide affected employees with notice of its filed petition. If neither the Secretary nor the employees object to the petition, the Secretary has the authority to approve the petition and the uncontested petition becomes a final order. If, however, either the Secretary, perhaps because of the employer's unwillingness to implement interim abatement measures specified by the Secretary, or the affected employees object to the petition, the Secretary forwards the petition to the Commission for docketing. The objecting parties are allowed ten days to file their reasons for objecting. The Commission then affords the parties an opportunity for a hearing before an administrative law judge at which the employer has the burden of proving that its request for an extension of time to abate is justified. Commission Rule of Procedure 34, 29 C.F.R. 2200.34. After the hearing, the ALJ determines whether the PMA should be granted. The ALJ's decision is reviewable by the Commission. Consequently, employers requiring additional time to abate violations of the Act are not forced to accede to interim abatement demands of the Secretary. It is the judge, or the Commission if the case is reviewed, that makes the ultimate determination on PMA petitions.

The Commission reviews the judge's decision in this case in the context of the extended abatement periods requested in ITT's PMA having already expired. The important issues raised by the parties, however, remain to be resolved. Furthermore, if ITT has not yet abated by the time of this decision, its actions must be guided by our decision.

In making its decision on whether or not to grant a PMA request, the Commission must look to Section 10(c) of the Act, supra, which indicates that an employer must demonstrate: (1) a good faith effort to comply with the citation's abatement requirements, and (2) abatement has not been completed because of factors beyond its reasonable control. The latter requirement is not in dispute in this case. The parties have stipulated that ITT has not abated because of factors beyond its control. The former requirement is at issue here to a limited extent only: the parties have stipulated that, except for implementing an adequate medical program, ITT has made a good faith effort to comply with the citation's abatement requirements. The parties have further limited he extent of the issue by their concession that it is only ITT's prospective unwillingness to provide x-rays and PFTs to all exposed employees, unless medically inadvisable, that is in contest.

B.

For the reasons stated in Part C below, we conclude that an employer's failure to take appropriate interim steps to protect its employees from a hazard while in the process of permanently abating a violation can justify the denial of the employer's request for an extension of an abatement date. Denial of the employer's request is proper, even if there is no standard which requires such interim protection, because the need for such protection may not exist in the absence of an extended abatement period.

The judge found that ITT had not shown good faith during the original abatement period because it had not implemented any medical surveillance program. This finding goes beyond the stipulated issue and, in any event, is not supported by the record. Prior to the expiration of the final original abatement date, ITT had afforded some medical surveillance, though the program did not completely mirror the Secretary's required medical program as finally constituted on the day of the hearing. ITT's medical surveillance program included the presence at the plant of a licensed physician for an hour a day, or longer if necessary, four days a week. All employees were required to complete health questionnaires designed to elicit the employee's own and family health history and the employee's occupational history. The questionnaires were analyzed by ITT's physician and, if they revealed possible health problems like coughs, asthma, past operations affecting an employee's chest, or a work history involving exposure to areas of dust, those possible problems would be further investigated by the physician. If the physician determined that chest x-rays and/or PFTs were necessary, they would be offered to the employees. All employees were given pre-employment physical examinations which included chest examinations and chest x-rays. Chest x-rays were available to employees after the pre-employment physical examination on the recommendation of the physician. Further, at the time of the hearing, it was ITT's position that any employee specifically requesting a chest x-ray would be examined by tile physician and, if there was no health reason why the employee should not be given an x-ray, the x-ray would be given. Also, for the period covered by its PMA, ITT was prepared to annually examine employees required to work in areas of the plant where respirators were required. ITT would make a determination of the physical ability to perform the required work and to use particular respirators. Employees with known respirator problems might be offered PFTs as often as every three months in the discretion of Dr. Weinberg.

C

We do not believe that ITT acted in bad faith. An employer may have its disputes with the Secretary resolved by the Commission without being found in bad faith for seeking to do so. Thus, if an employer seeks a PMA and the Secretary seeks to have the employer implement additional interim protective measures while full abatement is being accomplished, the fact that the employer disputes the appropriateness of those measures is not indicative of bad faith. If the employer has shown good faith in its past abatement efforts, and abatement has not been completed because of factors beyond the employer's, reasonable control, the PMA should be granted. However, if the Secretary is able to show the necessity of additional interim protective measures during the extended abatement period, the granting of the PMA should be made conditional on the employer implementing those measures.

We do not agree that an employer cannot be required to take interim abatement measures which are not required by a standard. Even absent a separate health standard specifying the particulars of a medical surveillance program, the Commission may impose an appropriate medical surveillance program on ITT. A medical surveillance program constitutes an alternative measure permissible under the Act to protect ITT's employees during the extended abatement period requested.

Procedures in PMA proceedings are analogous to the variance procedures in section 6(b)(6) of the Act. 29 U.S.C. 655(b)(6). An employer filing a PMA with the Commission seeks the modification of a citation's abatement requirements and an extension of time for compliance with a Commission abatement order. Similarly, under Section 6(b)(6) of the Act, an employer seeks an extension of time for compliance with a standard promulgated by the Secretary and is required to take steps that are available for the protection of its employees even though such steps may not appear in the requirements of the standard. Thus, in both cases, the employer seeks the modification of his abatement responsibilities and compliance schedule from the authority requiring compliance. [[7/]]

Further, the Act in section 10(c) provides that the Commission may modify abatement requirements in a citation, and Commission rule 34(b)(4), supra, acknowledges that employers unable to comply with the abatement requirements of a citation should do all that is feasible to provide their employees with interim protection. It specifies that a PMA should contain information on all the available interim steps being taken to safeguard employees against the cited hazard during the abatement period. 29 C.F.R. 1903.14a(b)(4), 2200.34 (b)(4).

The judge in this case found the evidence establishes that ITT should have implemented a medical surveillance program that included periodic chest x-rays for employees exposed to silica dust for seven years or more, annual PFTs, and annual physical examinations supplemented by physician-review of updated medical history questionnaires. The evidence as summarized below supports the judge's determination.

Dr. Ziem testified that chest x-rays and PFTs, in the vast majority of instances, will record the existence of silicosis at an earlier stage than will physical examinations and questionnaires. She recommended automatic x-rays every three years and automatic PFTs annually. Although she recognized that x-rays involve some hazard, she testified that the benefits to a person of early detection of silicosis were significantly greater than the hazards from the small amount of radiation received in getting x-rays every three years. Dr. Siegesmund testified that PFTs were justified on a regular basis and that radiologists may make a reasonable diagnosis of silicosis from x-rays in 7-15 years after a patient's initial exposure to silica dust. Dr. Weinberg testified that it was possible for x-rays to reveal nodulation consistent with silicosis without a patient having exhibited symptoms of silicosis. He did not think, however, that x-rays would show silicotic nodules before seven or eight years of exposure to a dust-laden atmosphere. Accordingly, ITT should have been ordered to implement the medical program approved by the judge.

In summary, ITT's PMA should have been granted conditionally. ITT satisfied the showings of good faith and inability to complete abatement that are necessary for the granting of a PHA under section 10(c) of the Act. However, because of the lengthy extended abatement periods involved here, ITT was obligated under the Act to protect its employees during the extended abatement periods by the implementation of interim abatement measures going beyond those that it was willing to afford as part of its medical program. Those additional measures consist of offering x-rays every three years to each employee exposed to silica dust for at least seven years, unless medically inadvisable, and offering PFTs annually to each employee exposed to silica dust, unless medically inadvisable. Since the extended abatement periods expired as of January 1, 1981, and August 1, 1982, however, ITT is only required to implement those additional protective measures if it has not yet achieved abatement of citation 2, item 1b.


Docket No. 80-1620

OSHRC No. 80-1620 stems from the same citation 2, item 1b involved in the PMA case. The Secretary reinspected ITT's cited foundries on February 28, 1980, which is after the final abatement date of August 4, 1979 specified by the citation, but prior to the extended abatement dates requested in ITT's PMA. Subsequent to his reinspection, the Secretary issued a Notification of Failure to Correct the violations alleged in citation 2, item 1b. He also proposed an additional penalty of $100 a day for each day the violation continued after the final abatement date of August 4, 1979, a total amounting to $20,800 as of the February 28, 1980 reinspection date. ITT contested the failure to correct notification, and the International Molders and Allied Workers Union elected party status.

The case is before the Commission on interlocutory appeal of Judge Taylor's order denying ITT's motion to dismiss. At the time of the reinspection, and following, the Secretary was attempting to enforce only conditions for the extended abatement period. Though the Secretary may oppose a PMA or request conditions on it, only the Commission may grant or deny a contested PMA, or approve one conditionally. At the time of the Secretary's reinspection the Commission had not directed the additional conditions on granting of an extended abatement period. Thus, ITT was not legally obligated to comply with any additional conditions in order to qualify for the extended abatement dates it requested, and the notification of failure to correct is vacated.

SO ORDERED.
FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: APR 27 1983


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FOOTNOTES:

[[1/]] The standard at section 1910.1000(e) reads:

1910.1000 Air Contaminants.

(e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve full compliance, protective equipment or any other protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section. Any equipment and/or technical measures used for this purpose must be approved for each particular use by a competent industrial hygienist or other technically qualified person. Whenever respirators are used, their use shall comply with 1910.134.

[[2/]]Section 10(c) of the Act provides, in pertinent part.

Upon a showing by an employer of a good faith effort to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control, the Secretary [sic], after an opportunity for a hearing as provided in this subsection, shall issue an order affirming or modifying the abatement requirements in such citation. The petition for modification of abatement is adjudicated by the Commission instead of the Secretary. H.K. Porter Co., 74 OSAHRC 59/D13, 1 BNA OSHC 1600, 1973-74 CCH OSHD 17,471 (No. 1210-P, 1974).


[[3/]] Section 6(b)(7) provides, in pertinent part:: "Any standard promulgated under [section 6(b) of the Act] . . . shall prescribe the type and frequency of medical examinations . . . which shall be made available, by the employer . . . to employees. . . ." ITT notes that the Secretary has promulgated the following standards which require x-rays and/or PFTs: tile asbestos standard at 29 C.F.R. 1910.1001 (chest x- rays and PFTs), the inorganic arsenic standard at 29 C.F.R. 1910.1018 (chest x-rays), the coke oven emissions standard at 29 C.F.R. 1910.1029 (chest x-rays and PFTs), the cotton dust standard at 29 C.F.R. 1910.1043 (PFTs), and the acrylonitrile standard at 29 C.F.R. 1910.1045 (chest x-rays).


[[4/]] Section 1903.14a(b)(1) and (4) reads:
1903.14a Petitions for modification of abatement date.

* * *

(b) A petition for modification of abatement date shall be in writing and shall include the following information:

(1) All steps taken by the employer, and the dates of
such action, in an effort to achieve compliance during the
prescribed abatement period.

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(4) All available interim steps being taken to safeguard the employees against the cited hazard during the
abatement period.

[[5/]] Commission procedural rule 34(b)(1) and (4), 29 C.F.R.
2200.34(b)(1) and (4), is identical to section 1903.14a(b)(1) and (4).


[[6/]] Commissioner Cottine notes that the components of ITT's medical surveillance plan preceding this PMA proceeding are not in issue in this case. However, in his view, when an employer becomes aware that it will be unable to meet an abatement deadline, it is incumbent on the employer to consider alternative, interim procedures that may be necessary to protect employee health during any extended abatement period. The adequacy of an employer's safety and health program in response to its recognition of the need for an extended abatement period may be a relevant factor in determining whether the employer has demonstrated a good faith effort to achieve abatement of cited hazards to the extent possible.


[[7/]] Commissioner Cottine notes that in Whirlpool Corp. v. Marshall, 445 U.S. 1, 11-13 (1980), the U.S. Supreme Court reiterated that:

The Act, in its preamble, declares that its purpose and policy is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources. . . ." 29 U.S.C. 651(b). [S]afety legislation is to be liberally construed to effectuate the congressional purpose. (Emphasis added by the Supreme Court.)

The Act's purpose is initially accomplished by the requirement that employers comply with the safety and health standards published in Title 29 of the Code of Federal Regulations, 29 U.S.C. 654(a)(2), or with section 5(a)(1) of the Act. 29 U.S.C. 654(a)(1).

Moreover, the case law developed under the Act provides numerous examples of situations where an employer who cannot comply with the specific terms of a standard must nonetheless take alternative measures different from the standard's terms to protect employees. For example, an employer on a multi-employer worksite will be relieved of responsibility for the exposure of its employees to hazards if it is demonstrated that the employer did not create the hazards and was unable to abate them and either (1) took realistic alternative measures to protect its employees or (2) had no knowledge or reasonable notice that the hazards existed. Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD 20,690 (No. 3694, 1976); Grossman Steel & Aluminum Co., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD 20,691 (No. 12775, 1976). This defense has been accepted by several U.S. courts of appeals. Dun-Par Engineered Form Co. v. Marshall, 676 F.2d 1333 (10th Cir. 1982); Electric Smith, Inc. v. Secretary of Labor, 666 F.2d 1267 (9th Cir. 1982); DeTrae Enterprises, Inc. v. Secretary of Labor, 645 F.2d 103 (2d Cir. 1980); Bratton Corp. v. OSHRC, 590 F.2d 273 (8th Cir. 1979).

Alternative protection is also involved in other defenses. To establish the impossibility defense, an employer must prove that: (1) compliance with the requirements of a cited standard either would be functionally impossible or would preclude performance of required work; and (2) alternative means of employee protection are unavailable. M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ,330 (No. 15094, 1979). See Morgan & Culpepper, Inc. v. OSHRC, 676 F.2d 1065 (5th Cir. 1982). To establish a greater hazard defense, the employer must prove that: (1) the hazards created by compliance with the requirements of a cited standard are greater than those resulting from noncompliance; (2) alternative means of protecting employees are unavailable; and (3) a variance application under section 6(d) of the Act, 29 U.S.C. 655(d), would be inappropriate. Morgan & Culpepper, supra; PBR, Inc. v. Secretary of Labor, 643 F.2d 890 (1st Cir. L981); M.J. Lee Construction Co., supra. See Noblecraft Industries, Inc. v. Secretary of Labor, 614 F.2d 199, 205 (9th Cir. 1980); General Electric Co. v. Secretary of Labor, 576 F.2d 558
(3d Cir. 1978).

Thus, contrary to the dissent, the Commission does not impose additional requirements on PMA applicants that are not imposed on other employers who are unable to abate according to the terms of an applicable standard. All employers are required to use available alternatives to literal compliance in those circumstances. As a result, employers need not file notices of contest or purposes other than good faith resolution of the merits of citations.