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

------------------------------------------------------------------------

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
<mailto:lwhitsett@oshrc.gov> ) , telephone (202-606-5398), fax
(202-606-5050), or TTY (202-606-5386)



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.

* * *

(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.