SECRETARY OF LABOR,
Complainant,

v.

PHELPS DODGE CORPORATION,
Respondent.

UNITED STEELWORKERS OF AMERICA,
AFL-CIO, and LOCAL UNION 616.

Authorized Employee
Representative.

OSHRC Docket No. 80-3203


DECISION

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

The Secretary of Labor issued to Phelps Dodge Corporation a citation alleging a violation of 29 C.F.R. § 1910.1018(n)(1)(ii),[[1/]] a provision of the inorganic arsenic standard. The standard requires in part that employers provide medical examinations to employees exposed to inorganic arsenic "without cost to the employee, without loss of pay, and at a reasonable time and place." The primary issues here are whether Phelps Dodge violated the "without cost" and "reasonable time" requirements.

I. Background and Facts

On January 21, 1975, the Secretary published a proposed standard regulating employee exposure to inorganic arsenic. 40 Fed. Reg. 3392 (1975). The proposed version of what is now section 1910.1018(n)(1)(ii) provided that medical examinations "shall be provided during the employee's normal working hours without cost to the employee." 40 Fed. Reg. at 3401.

The Secretary adopted the final standard in 1978. 43 Fed. Reg. 19584 (1978). Its medical examination provision did not require that examinations be conducted during working hours, unlike the proposed standard. It stated that medical examinations "shall be provided without cost to the employee, without loss of pay and at a reasonable time and place." The change was explained as follows in the preamble to the final standard:

The proposed standard included a requirement that all medical examinations be given during the employees' normal working hours. The final standard does not include the requirement because it may be impractical for shift workers or less convenient for employee or employer. However, the employer is obligated to pay for the time spent taking the medical examination if it is taken outside normal working hours and the exam must be given at a reasonable time and place. It is necessary that exams be convenient and without loss to the employee to assure that they are taken. [43 Fed. Reg. at 19621 (emphasis added).]

The preamble cited 29 U.S.C. § 655(b), section 6(b) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"), as legislative authority for the final arsenic standard. 43 Fed. Reg. at 19584- 85. It particularly cited section 6(b)(7) of the Act, 29 U.S.C. § 655(b)(7), as authority for the "without cost" requirement. Section 6(b)(7) provides in part that standards for measuring employee exposure to workplace hazards "where appropriate . . . shall prescribe the type and frequency of medical examinations or other tests which shall be made available, by the employer or at his cost, to employees exposed to such hazards in order to most effectively determine whether the health of such employees is adversely affected by such exposure."

Between November 19 and December 4, 1979, physical examinations of Phelps Dodge employees for medical consequences of inorganic arsenic exposure were conducted by Phelps Dodge at a hospital located about one mile from its smelter. The examinations required about 15 minutes to administer, and were offered to 158 employees from 8:00 to 9:00 a.m. and from 4:00 to 5:00 p.m. on the above dates. Employees were allowed to take an examination only during their free time; however, it was possible for them to work for a full day and to receive their usual wages for the day that an examination was taken. Employees were not charged an examination fee. If waiting time were included, an employee might have to set aside two hours of time for his examination. At least 50 employees lived at points distant from the smelter, and many of them commuted in van pools which required payment whether or not the employee actually rode the van on a given day. Employees were not paid for the time consumed in taking an examination or their expenses in traveling to and from an examination.

An initial series of medical examinations was conducted in 1978 during normal working hours. All covered employees were paid for their time; all participated in that examination series. By contrast, when examinations were made available only during non-working hours and employees were not compensated for time or associated travel expenses, only 58% of the affected employees participated. The follow-up examinations are the subject of this citation.

Administrative Law Judge Jerry W. Mitchell relied on the preamble to the standard and held that Phelps Dodge failed to comply with the "without cost" requirement of section 1910.1018(n)(1)(ii). The judge held that the examinations were not provided "without cost" because employees were required to provide their own--sometimes costly--transportation to and from the hospital and to sacrifice their personal time to take the examinations. The judge found it significant that these costs apparently caused 42% of the covered employees to fail to present themselves for a follow-up examination. The judge also held that the examinations were not provided "at a reasonable time" because "the employee is expected to expend an uncertain amount of his own free time . . . ." (Emphasis in the original.) The judge found that it would have been reasonable for the employer to have offered the examinations during ordinary working hours. Finally, the judge held that the "without cost" and "reasonable time" violations were not "serious" under section 17(k) of the Act, 29 U.S.C. § 666(j),[[2/]] because they could not by themselves cause physical harm.

Phelps Dodge and the Secretary filed, petitions for discretionary review. The employer argued that the judge erred in finding "without cost" and "reasonable time" violations; the Secretary contended that the violations should have been found to be "serious. " Commissioner Cottine granted both petitions. Expedited review was ordered by the Commission on October 9, 1981.

II. Were Medical Examinations Provided "Without Cost"?

Before the Commission, Phelps Dodge argues first that the judge erred in relying on the arsenic standard's preamble. It maintains that "resort to the legislative history is improper when a statute is clear and unequivocal on its face" and reasons that because the judge did not expressly find the standard ambiguous, the preamble of the standard should not have been relied upon. The employer argues next that the drafters only intended the word "cost" to mean "the amount or equivalent paid or charged [for an examination] . . . ." It contends that the "without loss of pay" provision addresses the issue of employee wages, and that it is therefore unreasonable to expect an employer to interpret the "without cost" provision to require the payment of wages to employees taking examinations outside of normal working hours. Finally, the employer claims that the standard as so interpreted is invalid because Congress "did not intend to impose a requirement that employers pay or reimburse employees undefined costs."

The Secretary argues that the judge's interpretation of "cost" is consistent with his own, and contends that an agency's contemporaneous interpretation of its own standard controls unless it is plainly erroneous or inconsistent. The Secretary argues that the standard as so interpreted is valid, citing to both section 2(b)(7) of the Act, 29 U.S.C. § 651(b)(7), [[3/]] and to the specific provision in section 6(b)(7) of the Act. The Secretary does not maintain on review that the "without loss of pay" or "reasonable, place" provisions of tile standard were violated. The Authorized Employee Representative supports the Secretary's arguments.

A. Interpretation of the "Without Cost" Provision

The standard requires that "medical examinations and procedures . . . shall be provided without cost to the employee. . . ." "Cost" is a broad term of several common meanings, including "the amount or equivalent paid or given or charged . . .," "whatever must be given, sacrificed, suffered, or foregone to secure a benefit . . .," and " the expenditure or outlay of money, time or Labor . . . ." Webster's Third New International Dictionary (1971). Contrary to Phelps Dodge's argument, these meanings encompass more than the costs of physician fees and laboratory tests. Although fees for physician and laboratory services certainly fall within all senses of the word, expenditure of time and money necessary to take medical examinations fall within the second and third - meanings of the word.

Phelps Dodge suggests that "cost" was used in the most restrictive sense because another term-- "without loss of pay"--covers the subject of compensation. This evidence of intent is weak. The words of the standard alone do not demonstrate any intent by the Secretary to exclusively cover pay matters under "without loss of pay." It would comport at least equally well with the language of the standard to say that the term "without loss of pay" was intended to ensure that employees are not penalized for taking examinations during their shifts, and to construe "without cost" to cover expenditure of time after or before shifts. Furthermore, as we shall see, the Secretary did not use "cost" in its most restrictive sense.

Although the language of the standard standing alone does not clearly indicate which sense of the word the Secretary employed, the legislative history of the standard does. The preamble to the standard clearly states the Secretary's intent that employees given examinations during non-working hours be paid for their time. Inasmuch as the language of the standard is susceptible of different meanings, the preamble is the best and most authoritative statement of the Secretary's legislative intent.[[4/]] We therefore hold that section 1910.1013(n)(1)(ii) requires that employees given medical examinations during non- working, hours be paid for their time. [[5/]]

The language of the standard is clearer and its legislative history nearly as helpful with respect to transportation costs. Employees who are not reimbursed for extra transportation expenses incur a "cost" in the plainest and most natural sense of the word. This finding is consistent with the preamble, which states the Secretary's legislative judgment that "[i]t is necessary that exams be convenient and without loss to the employee to assure that they are taken." We therefore affirm the judge's conclusion that section 1910.1018(n)(1)(ii) requires that transportation costs incurred to attend medical examinations must be borne by the employer and that employees who incurred such costs must be reimbursed.

In summary, we agree with the judge's interpretation of the "without cost" requirement. We hold that the standard requires that employees be paid for taking medical examinations during non-working hours and for extra transportation costs incurred as a consequence of a decision to provide medical examinations only during non-working hours. [[6/]] We adopt the judge's finding that Phelps Dodge violated the standard when employees were not compensated for their time or for extra transportation costs.

B. Validity of the Standard As Construed

Phelps Dodge claims that, if the standard is construed to require that employees be compensated for their lost time and reimbursed for their extra transportation expenses, it is invalid. First, Phelps Dodge maintains that section 6(b)(7) of the Act--the most pertinent statutory authority for the standard's "without cost" requirement--does not authorize the Secretary to require that employers bear these costs. Section 6(b)(7) requires, "where appropriate," that health standards "prescribe the type and frequency of medical examinations or other tests which shall be made available, by the employer or at his cost, to employees exposed to such hazards in order to most effectively determine whether the health of such employees is adversely affected by such exposure." Phelps Dodge appears to argue that the statutory phrase "by the employer or at his cost" could only have meant to refer to the payment of physician and laboratory fees. It therefore maintains that Congress did not permit the Secretary to require employers to bear other costs. Second, Phelps Dodge argues that, because the Act's drafters rejected a so-called "strike-with-pay" amendment, Congress did not intend that employers compensate workers who are absent from the workplace. It relies on Whirlpool Corp. v. Marshall, 445 U.S. 1, 17 (1980).

The question here is whether the standard is invalid because it exceeds the Secretary's delegated authority under the statute or is inconsistent with the intent of Congress.[[7]] See &generally United steelworkers v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981). We agree with the District of Columbia Circuit that the Secretary has been granted "almost unlimited discretion to devise means to achieve the congressionally mandated goal," including the authority to require that employers bear the cost of protective measures. 647 F.2d at 1230. Therefore, we conclude that a requirement that employers pay employees for time spent taking a medical examination and for associated transportation costs lies well within the general range of the Secretary's authority. We find no specific limitation on that general authority to adopt this requirement.

There is no indication in the language of section 6(b)(7) that Congress intended to forbid the Secretary from adopting a standard such as this. As we have indicated, the word "cost" is a broad term of several meanings, some encompassing the expenses at issue here. Phelps Dodge has not pointed to, and we are unaware of, any legislative history of section 6(b)(7) that shows that Congress intended by the use of the word "cost" to forbid the Secretary from imposing upon employers more than the cost of physician and laboratory fees. Section 6(b)(7) is not merely an authorization; it is an express direction to the Secretary. It generally requires the Secretary to include, at a minimum, a medical examination provision in health standards. Because Congress' express purpose in section 6(b)(7) was to "most effectively determine whether the health of . . . employees is adversely affected . . . " (emphasis added), it would be inappropriate to construe the term "cost" in the section as a limitation on the Secretary's authority under section 6(b)(7) to assure that medical examinations are taken. Moreover, even if section 6(b)(7) were intended to refer only to the cost of physician and laboratory fees, it does not follow that Congress intended to forbid the Secretary from using his general rulemaking authority under section 6(b) to require employers to bear other expenses related to medical examinations.

We are also unconvinced that Congress' rejection of a so- called "strike-with-pay" provision shows an intent to forbid a requirement that employees be paid for time spent taking medical examinations outside working hours. The strike-with-pay provision provided that under certain circumstances noted below, all employer shall not require any employee to be exposed to toxic concentrations of a substance unless certain information is provided to employees and protective measures are taken, "or unless such exposed employee may absent himself from such risk of harm for the period necessary to avoid such danger without loss of regular compensation for such period." [[8/]] Representative Daniels, the sponsor of the provision, proposed to delete the provision after it aroused controversy. In debate, Senator Williams, the chief sponsor of the successful Senate bill, S. 2193, 91st Cong., 2d Sess. (1970), explained why the Senate bill contained no strike-with-pay provision: "Rather than raising a possibility for endless disputes over whether employees were entitled to walk off the job with full pay, it was decided in committee to . . . [give] the employees the right to request a special . . . inspection." Leg. Hist. at 416.

It bears emphasis that the rejected strike-with-pay provision apparently permitted employees to unilaterally decide whether they were entitled to be absent from work based on criteria derived from "ad hoc, informal action by (the Secretary of Health, Education, and Welfare]." Steelworkers, 647 F.2d at 1233. Employees were to determine (1) whether they were still exposed to the concentrations of toxic substances identified by the Secretary of Health, Education, and Welfare as hazardous; (2) whether the employer had provided tile required information; and (3) whether adequate personal protective equipment allowing "established work procedure:, to he performed" had been provided. The provision's apparent guarantee of regular compensation also threatened to color the employees' subjective judgment that these conditions existed. These features of the "strike-with-pay" provisions raised the potential for "endless disputes" mentioned by Senator Williams.

By contrast, the requirements of this standard result from OSHA rulemaking, are not based on employees' subjective evaluations, and do not raise a similar potential for controversy and abuse. See id. It is the employer who determines where and when examinations are to be given. It is the employer, not the employee, who determines whether employees are to work an entire shift, and whether regular workplace operations are to be interrupted. It is the standard, not the employee, that determines to whom and with what frequency examinations are to be provided. See sections 1910.1018 (n) (3) (i)-(iii). [[9/]]

Finally, we agree with the District of Columbia Circuit that the mere requirement of compensation for non-working time does not conflict with the view of the legislative history set forth by the Supreme Court in Whirlpool. There, the Supreme Court examined the legislative history of the strike- with-pay provision and stated that "Congress very clearly meant to reject a law unconditionally imposing upon employers an obligation to continue to pay their employees their regular pay checks when they absented themselves from work for reasons of safety." 445 U.S. at 17-19. However, as the D.C. Circuit observed:

In characterizing the Daniel's bill here the Court may have stressed the issue of compensation, but it was clearly speaking only in the context of a worker's self-initiated decision to leave the job after making a subjective decision that the workplace was dangerous. The Court did not address, and of course had no reason to address, the question of requiring compensation of workers who are removed from a job-perhaps against their will--according to objective regulatory criteria.

Steelworkers, 647 F.2d at 1234 n. 69 (emphasis added).

111. Were Medical Examinations Provided at "Reasonable Times"?

Examinations were offered on November 19-22, 26-29 and December 3-4, 1979, from 8:00 to 9:00 a.m. and from 4:00 to 5:00 p.m. Phelps Dodge employees worked on several different schedules. Some worked "straight days" (7:00 a.m.-3:30 p.m.); most worked a rotating shift. "A," "B," and "C" shifts worked, respectively, 7:30 a.m.-3:00 p.m., 3:30 p.m.-11:30 p.m., and 11:30 p.m.-7:30 a.m.; the shifts rotated on November 25, 1979. A few electricians worked a special rotating shift that had starting and quitting times an hour earlier than the standard rotating shift.

An examination took about 15 minutes to administer. Three employees testified to the amount of time they had to wait to take examinations conducted in the two-week period from November 19 to December 4. One waited an hour for an examination that consumed one-half hour. Another was released from work twenty minutes early, "waited for a little while" to be examined, and left the hospital 40 minutes after he arrived. A third employee testified that he left the hospital about an hour after he arrived.[[10/]]

Judge Mitchell ruled that Phelps Dodge had failed to provide medical examinations "at a reasonable time" within the meaning of section 1910.1018(n)(1)(ii). In the judge's view, the available times were unreasonable because employees were required to wait from one-half hour to one-and-a-half hours after the end of their workshifts before they could begin an. examination. The judge characterized this delay as "long and uncertain"; he also found that the employer failed to provide an opportunity for any examinations to be taken before the beginning of a workshift.

Phelps Dodge contends that the judge both misconstrued the facts and misapplied the standard. The employer first takes exception to the finding that examinations were not provided before the start of an employee's workshift. Phelps Dodge also argues that the judge failed to consider whether the offered times were themselves reasonable, and instead concluded that different times would have been more reasonable. The Secretary addresses the "reasonable time" issue only in a footnote, arguing that "the uncertainty as to how much of the employees' time would be required made the scheduling unreasonable. . . . Uncertainty is a deterrent since it interferes with an employee's planning of his off-duty time." The United Steelworkers argues that the offered times were not reasonable for "B" shift employees because they would have to be examined between 8:00 and 9:00 a.m. on a day when they would not begin work until 3:30 p.m.

We do not agree with Judge Mitchell that Phelps Dodge failed to provide medical examinations "at a reasonable time" within the meaning of the standard. It has not been demonstrated that either the times at which examinations were offered or the amount of time that an employee could expect to devote to an examination were unreasonable. Although the judge's finding that Phelps Dodge "definitely did not provide any opportunity for employees to take the exam immediately before their shifts" is accurate for the two- week examination period that is principally at issue, it is inaccurate as to subsequent dates which we consider relevant.

Taking the union's argument first, we find that the pre- arranged examination times were not shown to be unreasonable for "B" shift employees. On November 25, 1979, in the middle of the two-week-long, principal examination period, the shifts rotated such that "B" shift became "A" shift; former "B" shift employees then worked from 7:30 a.m. to 3:30 p.m. Any inconvenience to former "B" shift employees was mitigated because they could then have scheduled an examination between 4:00 and 5:00 p.m.

We also reject the Secretary's argument that we find a "reasonable time" violation based on uncertainty as to how much time would be taken up by the medical examination. After the two- week period ended, Phelps Dodge made extensive efforts to contact those employees who had failed to sign up or show up for an examination in an effort to get as many employees examined as possible. [[11/]] Phelps Dodge's industrial hygienist testified without rebuttal that she, along with the employer's safety inspector and two technicians, contacted each previously unexamined employee to try to schedule a convenient examination. The industrial hygienist stated that employees who failed to show up or sign up were contacted "usually three, four, or five times ... well into January, February and March [of 1980]." These subsequent examinations were not restricted to the previously set times; several examinations were scheduled for times and days of the week not previously available. As for the length of waiting time, the record reveals that employees endured modest waiting periods, with only one employee reporting a wait of more than one hour for an examination during the principal two-week period. It is worth noting that where over one hundred employees are required to be provided with examinations, some Uncertainty as to the timing and duration of those examinations may well be unavoidable. The standard requires only that examinations be offered "at a reasonable time," and the evidence is persuasive that employees were given substantial freedom to select a convenient date and time to be examined. We therefore find that, in light of all the circumstances, Phelps Dodge did not fail to provide examinations "at a reasonable time," and we reverse that part of the judge's decision that found a violation of the "reasonable time" requirement of section 1910.101.3(n) (1)(ii).

IV.

The judge found that the failure to provide examinations without cost and at a reasonable time was an other than serious violation because Phelps Dodge's failure to comply with the requirements of the standard did not constitute "a condition or situation which is the cause of tile resulting injury." (Emphasis in the original.) The judge stated that "[t]he cause of the physical harm here, if any does result, is the exposure of the affected employees to inorganic arsenic, not failure to provide the required medical examinations. . . ."

The Secretary argues that the judge's analysis is wrong under Anaconda Aluminum Co., 81 OSAHRC 27A/A2, 9 BNA OSHC 1460, 1477, 1981 CCH OSHD ¶ 25,300, p. 31,349 (No. 13102, 1981). We held there that one must look to "the hazard against which the standard is intended to protect," and that a serious violation may be found where death or serious physical harm could, rather than would, result from a violation. In the view of both the Secretary and the Steelworkers, a failure to provide examinations without cost increases the probability that any illness will go undetected and therefore that employees will suffer serious physical harm or death.

Phelps Dodge argues that an employee's failure to take a physical examination could not in and of itself cause physical harm, and notes that the evidence in this case nowhere demonstrates that any employee has suffered illness as a result of exposure to inorganic arsenic.

The Secretary is not required to show that an incident or a life- threatening disease will occur or is substantially probable to occur in order to establish a serious violation. Kaiser Aluminum & Chemical Co., 82 OSAHRC 41/B1, 10 BNA OSHC 1893, 1896-97, 1982 CCH OSHD ¶ 26,162, p. 32,974-75 (No. 77-699, 1932); Anaconda Aluminum Co., supra; see also Usery v. Hermitage Concrete- Pipe Co., 584 F.2d 127, 131-134 & n.5 (6th Cir. 1978). Instead, the Commission has 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. Kaiser Aluminum & Chemical Co., supra; Anaconda Aluminum Co., supra. As the Secretary notes, we made clear in Anaconda that in determining whether a disease could result from the violative condition, we look to the hazard against which the standard is intended to protect.

The Secretary stated in the preamble to the standard that he

has carefully reviewed the substantial body of evidence relating to the carcinogenicity of inorganic arsenic and has concluded that it is clearly a human carcinogen. . . . There is a substantial body of epidemiologic studies of arsenic-exposed workers in varying environments showing excess risk of lung cancer where the one common factor is exposure to inorganic arsenic.

43 Fed. Reg. at 19586. The Secretary also noted that it has not been established that a safe level of exposure to inorganic arsenic exists. Therefore, "the permissible exposure limit must be set at the lowest level feasible." 43 Fed. Reg. at 19600. Medical surveillance is required by the standard even before the PEL is exceeded, apparently in light of the absence of a demonstrated safe exposure level, see 43 Fed. Reg. at 19613, and in order "to provide for early diagnosis of health effects of inorganic arsenic exposure," 40 Fed. Reg. at 3398; see also 43 Fed. Reg. at 19620-21 (adopting rationale from proposed standard; sputum cytology described as "effective tool for early detection of respiratory cancer"). It has also been demonstrated that early evidence of harmful exposure to inorganic arsenic--especially, as here, where no safe exposure levels have been demonstrated--is critical if exposed workers are to avoid very serious medical consequences. See Appendix C to § 1910.1018 (inorganic arsenic exposure poses risk of lung cancer, skin cancer, dermatitis, poisoning, perforation of the nasal septum. and other serious health effects). The standard thus requires the employer to offer medical examinations without cost to determine that employees have not contracted cancer or other serious illnesses. Therefore, because section 1910.1018(n)(1)(ii) is designed to protect employees against the contraction or progression of serious illnesses by requiring medical surveillance procedures that would permit early detection of such illnesses, see Anaconda Aluminum, 9 BNA OSHC at 1477, 1981 CCH OSHD at p. 31,349, we conclude that Phelps Dodge's failure to provide physical examinations "without cost" constitutes a serious violation. We reverse the judge's finding that the violation was other than serious, and find Phelps Dodge in serious violation of the Act.

V.

The Secretary proposed a $480 penalty for the alleged "without cost," "without loss of pay," of reasonable time," and "reasonable place" violations. The judge assessed a penalty of $100 for the "without cost" and "reasonable time" violations. The Commission considers the following factors when assessing penalties: the size of the business, the gravity of the violation, the employer's good faith, and its history of previous violations, if any. [[12/]] The record reflects that Phelps Dodge is the largest smelter operation in the state of Arizona, with 3200 employees at its Morenci Branch smelter. However, the gravity of the violation is low, inasmuch as the medical surveillance program involved less than 57 of all employees at the Morenci Branch. Phelps Dodge demonstrated good faith in continuing to offer exams at nearly any convenient time for its, employees after the November 19- December 4, 1979, series of follow-up exams. The employer received three citations in the two years previous to the inspection, all of which became final orders. In light of the above factors, we consider a penalty of $100 to be appropriate.

Accordingly, the judge's decision is affirmed in part and reversed in part. The portion of Citation No. 1 that alleged a violation of the "without cost" provision of the standard is affirmed as serious; a penalty of $100 is assessed.

SO ORDERED.
FOR THE COMMISSION

Ray H. Darling,
Jr. Executive Secretary

DATED: APR 27 1983

The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ) , telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386)

FOOTNOTES:

[[1/]] That standard provides:
§ 1910.1018 Inorganic arsenic.
* * *

(n) Medical Surveillance- --
(1) General --
* * *

(ii) Examination by physician. The employer shall assure that all medical examinations and procedures are performed by or under the supervision of a licensed physician, and shall be provided without cost to the employee, without loss of pay and at a reasonable time and place.

[[2/]] Section 17(k) of the Act 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.

[[3/]] Section 2(b)(7) declares that Congress intended to achieve the goals of the Act by, among other things, "providing medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience . . . ."

[[4/]] Phelps Dodge argues that the judge erred it. consulting the legislative history of the standard without expressly finding that the standard is ambiguous. We find no error in the judge's approach. The Supreme Court has made clear that "[w]hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on 'superficial examination.' " United States v. American Trucking Associations, 310 U.S. 534, 543-544 (1940); see Watt v. Alaska, 101 S.Ct. 1673, 1677-78 (1981)(legislative history may be used to show that drafter "did not intend words of common meaning to have their literal effect"). See generally Murphy, "Old Maxims Never Die: The 'Plain Meaning Rule' and Statutory Interpretation in the 'Modern' Federal Courts," 75 Colum. L.Rev. 1299 (1975). Of course, the best evidence of legislative intent, and the first source to consult, is the language of the statute or regulation. See Dawson Chemical Co. v. Rohn & Haas Co., 448 U.S. 176, 187 (1980); see also Church of Scientology v. United States Department of Justice, 612 F.2d 417, 422 (9th Cir. 1979) ("the plainer the language, the more convincing contrary legislative history must be"). However, the language of this standard is not plain.

Commissioner Cottine notes that the use of legislative history to resolve ambiguities in statutory or regulatory language is an appropriate interpretive aid. See United Mine Workers v. FMSHRC, 671 F.2d 615 (D.C. Cir. 1982), cert. denied, 103 S.Ct. 239 (1983); Jordan v. Department of Justice, 591 F.2d 753 (D.C. Cir. 1978) (en banc). Reliance on legislative history is properly rejected when it results in an interpretation contrary to an unambiguous statutory requirement, United Mine Workers v. FMSHRC, supra; National Small Shipments Traffic Conference,Inc._v. Civil Aeronautics Board, 618 F.2d 819 (D.C. Cir. 1980), or creates an ambiguity rather than resolves one. Jordan v. Department of Justice, supra.

[[5/]] Phelps Dodge briefly argues that another portion of the standard's legislative history supports its construction. The proposed version of the standard stated that medical examinations "shall be provided during the employee's normal working hours without cost to the employees." 40 Fed. Reg. at 3401. Phelps Dodge starts with the premise that employees would necessarily have been paid under this proposed standard; it therefore reasons that the term "without cost" in the proposed standard could only have referred to physician and laboratory fees. Even if we were to assume that this premise is correct, it does not follow that the term "without cost" was used in the same sense in the final standard. After all, the proposed standard did not even.permit examinations to be given during non-working hours. This requirement of the proposed standard was omitted from the final standard because the Secretary thought it "impractical for shift workers or less convenient for employee or employer." See 43 Fed. Reg. at 19621 (explaining changes from proposed standard). "Without cost" could therefore have been used by the proposed standard in the limited sense suggested by Phelps Dodge, but used in a different sense in the final standard, which permits non-working hour examinations. In any event, this evidence is not enough to overcome the most authoritative evidence of what the Secretary meant by the final standard--its preamble.

[[6/]] Phelps Dodge appears to suggest that it lacked fair notice of the judge's interpretation of the standard. However, the record shows that it had actual notice of the preamble in 1978, and sought legal advice concerning its proper interpretation. Inasmuch as all that due process requires is a fair and reasonable warning of the regulation's requirements, see Sun Ship, Inc., 82 OSAHRC 69/A2, 11 BNA OSHC 1028, 1036 n.19, 1983 CCH OSHD ¶ 26,353, p. 33,425 n.19 (No. 16118, 1982), and cases cited, the employer's fair notice argument is rejected.

[[7/]] On April 7, 1981, the U.S. Court of Appeals for the Ninth Circuit remanded the inorganic arsenic standard to OSHA for reconsideration in light of the Supreme Court decision in Industrial Union Department v. American Petroleum Institute, 448 U.S. 607 (1980). ASARCO, Inc. v. OSHA, 647 F.2d 1 (9th Cir. 1981). The case was before the Ninth Circuit on consolidated industry petitions challenging the standard under section 6(f) of the Act, 29 U.S.C. § 655(f), which authorizes judicial review of standards issued by the Secretary. The court specifically retained jurisdiction of the case and ordered that the standard remain in effect pending resubmission and until further order of the court. Pursuant to the order of the court OSHA conducted additional hearings and received public comments. On January 14, 1983, OSHA published its Supplemental Statement of Reasons for the Final Rule. After an extensive review of the evidence OSHA concluded that no change in the inorganic arsenic standard that went into effect on August 1, 1978, was warranted. 48 Fed. Reg. 1864 (1983). Phelps Dodge Corp. is a party to the pending industry challenge.

Although the Commission has the authority to consider an enforcement challenge to a standard's statutory validity, see Rockwell Int'l Corp., 80 OSAHRC 118/A2. 9 BNA OSHC 1092, 1980 CCH OSHD ¶ 24,979 (No. 12470, 1980), the Commission also has the discretion to postpone its decision in a case raising such a challenge when a parallel challenge under section 6(f) is pending. A postponement would be consistent with the public policy favoring single-forum review of challenged agency action embodied in 28 U.S.C. § 2112(a). See American Civil Liberties Union v. Federal Communications Commission, 486 F.2d 411 (D.C. Cir. 1973); Eastern Air Lines, Inc. v. Civil Aeronautics Board, 354 F.2d 507 (D.C. Cir. 1965); see also United Steelworkers of America, AFL-CIO v. Marshall, 592 F.2d 693 (3d Cir. 1979). We have decided, however, not to exercise our discretion to postpone consideration in this case. The provision of the inorganic arsenic standard involved in this case has been in effect since August 1, 1978, pursuant to promulgation, 43 Fed. Reg. 19589 (1978), and by court order, ASARCO Inc. v. OSHA, supra. The Commission is the statutory forum for the adjudication of enforcement actions arising under the Act. 29 U.S.C. § 651(b)(3). Also, the same circuit in which the arsenic standard is under challenge has recently recognized the propriety of considering challenges to the validity of a standard in an enforcement proceeding. See Marshall v. Union Oil Co. of California, 616 F.2d 1113, 1117-18 (9th Cir.1980). Furthermore, the challenge to the standard's validity is encompassed in the direction for Commission review of this case under 29 U.S.C. 661(i) and Commission consideration has been expedited under 29 C.F.R. § 2200.101. In addition, neither party has raised or in any way addressed this issue although both parties to this adjudicatory proceeding are parties to the ASARCO litigation. In view of the continued enforcement of the standard, the expedited status of the case, and the Commission's authority as the primary forum for the adjudication of enforcement actions, we proceed with a decision on Phelps Dodge's challenge to the validity of the standard in this case.

[[8/]] H.R. 16785, 91st Cong., 2d Sess. § 19(a)(5), p. 78 (1970)(as reported), reprinted in Subcommittee on Labor of the Senate Committee on Labor & Public Welfare, 92nd Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, 893, 970 (1971)("Leg. Hist.").

[[9/]] These provisions require that the examinations he given. at least annually for covered employees who are under 45 years of age with fewer than 110 years of" exposure over the action level and at least semi-annually for other covered employees. The standard also requires that if an employee has not taken an examination within six months preceding the termination of his employment, the employer must provide such an examination upon termination.

[[10/]] A fourth employee testified that although examinations and waiting time usually consumed about an hour, he once had to stay at the hospital for two hours. It is not clear from his testimony that this two-hour stay occurred during the principal two-week examination period.

[[11/]] Although the citation and complaint allege a violation date of "on or about May 6, 1980," the stipulation filed with the judge and the evidence presented at the hearing make clear that the parties intended to focus both on the November 19-December 4, 1979 period as well as on subsequent dates and times. See Federal Rule of Civil Procedure 15(b).

[[12/]] Section 17(j), 29 U.S.C. § 666(1), provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.