“ITT GRINNELL CORP.,Petitioner,v.SECRETARY OF LABOR,Respondent.OSHRC Docket No. 79-3185-PSECRETARY OF LABOR,Complainant,v.ITT GRINNELL CORP.,Respondent,INTERNATIONAL MOLDERS ANDALLIED WORKERS UNION.Authorized EmployeeRepresentative.OSHRC Docket No. 80-1620DecisionBefore ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:These two related cases are consolidated by the Commission for purposesof decision. Docket No. 79-3185-P involves a decision of AdministrativeLaw 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 of1970, 29 U.S.C. ?1 651678 (\”the Act\”). In that decision, Judge Taylordenied a petition by ITT Grinnell Corp (\”ITT\”) for an extension of theabatement dates specified by the Secretary of Labor (\”the Secretary\”)following a citation alleging ITT’s noncompliance with the healthstandard at 29 C.F.R. ? 1910.1000(e). [[1\/]] Judge Taylor based hisdenial on ITT’s lack of a good faith effort at compliance with thecitation’s abatement requirements in that ITT had not implemented anymedical surveillance program during the one-year abatement periodspecified in the citation. The principal issue in the case is whetherITT may be required to take certain appropriate interim measures toprotect its employees as a condition of being granted a request for anextension of the abatement daces. We conclude that ITT may be requiredto take appropriate interim protective measures. However, under thecircumstances of this case, we conclude that ITT’s petition formodification 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’scertification of interlocutory appeal. Commission Rule of Procedure75(b), 29 C.F.R. ? 2200.75(b). Judge Taylor denied a motion by ITT fordismissal of a Notification of Failure to Correct the violations allegedin item 1b. The notification had been issued by the Secretary subsequentto a reinspection of ITT’s facilities on a date following the finalabatement date specified in the citation. We reverse the judge and grantITT’s dismissal motion.Docket No. 79- 3185-PIFollowing an inspection of ITT’s Columbia. Pennsylvania iron foundry,the Secretary issued three citations to ITT on August 4, 1978. Onlysubitem 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) inthat feasible administrative or engineering controls were not determinedand implemented to reduce employee exposure to respirablequartz-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 completeabatement of this item shall be submitted to the Area Director. Such aplan shall: a) Employ the use of qualified engineering personnel; b)Include detailed engineering studies and their results; c) Outline theordering 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 controlsshall be determined.Step 3 – Abatement shall be completed by implementation of feasibleengineering and\/or administrative controls and its effectiveness atachieving compliance verified. Ninety-day progress letters are requestedduring the abatement period.The required abatement date for steps 1 and 2 was January 4, 1979; theabatement. date for step 3 was August 4, 1979. No requirement for amedical surveillance program was specified.ITT did not contest citation 2 or its notification of penalty, and thecitation became a final order of the Commission. 29 U.S.C. ? 659(a). OnMay 11, 1979, however, ITT submitted a petition for modification of theabatement dates (\”PMA\”) listed in citation 2. The PMA requested aJanuary 1, 1981 abatement date to implement the required controls in theelectric foundry and an August 1, 1982 abatement date to implement therequired 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 toreview ITT’s PMA. Page 1 of that letter contains the following paragraph:(2) Medical Program (Silica Dust Exposure) – We request a copy of ITT’smedical program as it relates to silica dust exposure. In this regard,we expect that diagnostic techniques such as 14\” by 17\” chest x-rayexaminations and pulmonary function testing will be addressed. Before anemployee is permitted to work in an area where excessive silica dustconcentrations exist or wear respiratory protection, the medical programshould provide that a written physician’s opinion be obtained for eachemployee relative to the suitability for such exposure or respiratory use.Pursuant to the Area Director’s request, ITT forwarded copies of itsrespirator protection program by letter dated June 13, 1979. Page 4 ofthat program contains the following pertinent information.VI. Medical1. All employees required to utilize respiratory protection devices willbe examined by the Medical Staff, in accordance with the guidelinesestablished by the Company’s consulting physician. A determination ofphysical ability to perform the work and use the equipment will be made.2. Employees required to work in respirator areas will be examined atleast once annually in accordance with guidelines established by theCompany’s consulting physician.3. The Safety & Health Staff will provide the Medical Staff with acurrent list of respiratory areas.Also, ITT’s response indicates its employees in the cited areas wererequired to wear respirator protection pending implementation of therequired controls.On August 3, 1979, the Secretary filed an Objection toPetition for Modification of Abatement Date with the Commission. On page7, the Secretary stated that he opposes ITT’s petition becausethe Petitioner’s [ITT’s] medical program as it pertains to silica dustexposure is insufficient to protect exposed employees from the hazardsof said exposure during the lengthy abatement period requested.Specifically. Respondent contends that the medical program shouldmandatorily provide that chest x-ray and pulmonary function studies beconducted on any employee who works or has worked in any of the citedareas unless said employee objects to said diagnostic testing.IIThe hearing on the matter was held before Judge Taylor on September 17,1979. The parties stipulated that, except for implementing an adequatemedical surveillance program, ITT had made a good faith effort to complywith the abatement requirements in citation 2, that abatement had notbeen completed because of factors beyond ITT’s control, and that ITT’sfuture plans for administrative and engineering controls were satisfactory.The parties also stipulated that the only issue to be resolved at thehearing was whether chest x-rays and pulmonary function tests (\”PFTs\”)would be offered exposed employees automatically, unless medicallyinadvisable, or whether the x-rays and PFTs would be offered to exposedemployees only at the discretion of ITT’s plant physician. TheSecretary’s particular demands, only made known to ITT as of the date ofthe hearing, were that employees exposed to silica dust be offered chestx-rays every three years and PFTs every year until ITT has implementedthe required engineering and administrative controls.Testimony at the hearing provides a description of the disease silicosisand, primarily, offers opinions on the means of diagnosing the disease.Employees working in areas of silica dust concentrations inhale thedust. The very fine particles of the dust work their way down into theair sacs of the employee’s lungs. Deposits of the silica dust on the airsacs cause a scarring of the lungs in a slow process that is aggravatedby continued exposure to silica dust, but continues even after exposureto silica dust stops. Diagnosis of silicosis before a considerableamount of scarring occurs is difficult and the methods of diagnosing thedisease differ. Early diagnosis is important, however, to preventsilicosis-caused disability.Dr. Grace Ziem, a physician and assistant professor at Johns HopkinsUniversity in occupational health who testified for the Secretary,stated that there are four essential elements to a program to detectsilicosis. The elements are PFTs, x-rays, physical examinations, andquestionnaires eliciting information on the personal, family, andemployment history of employees. She testified that in the vast majorityof instances chest x-rays and PFTs would record the existence ofsilicosis at an earlier stage than would physical examinations andquestionnaires. It was her recommendation that ITT foundry employees begiven PFTs automatically on an annual basis and be given x- raysautomatically every three years. Although she acknowledged that even onex-ray could possibly cause cancer, she testified that the benefit to aperson of detecting silicosis at an early point was significantlygreater than the hazard from the small amount of radiation received ingetting x-rays every three years. She also stated that doing moderate toheavy work while wearing a respirator at a hot foundry producesincreased breathing and heart rate; the resultant potential strain onthe heart and the lungs of the employees placed at risk by such exposureshould be evaluated by the most sensitive methods of evaluationavailable, particularly PFTs.Dr. Kenneth Siegesmund, a medical research expert and associateprofessor of anatomy at the Medical College of Wisconsin who testifiedfor ITT, stated that there is really no good method of diagnosingsilicosis except by the biopsy method of cutting a tiny piece of lungtissue and determining the amount of silica present in it. He testifiedthat chest x-rays should not be given automatically and should only begiven when a physician has ample evidence that it is actually necessary.Such evidence should come from PFTs, which Siegesmund stated werejustified on a regular basis, physical examinations, personal historiesof the patient and a knowledge of the diseases contracted and silicaexposure experienced by the patient. Dr. Siegesmund testified thatautomatic x-rays were unwise because of the problems with x-rays,including the fact that even one x-ray could cause cancer and the factthat silicosis could not be diagnosed by x-rays until the very latestages of the disease. Dr. Siegesmund did testify, however, that X-rayswere not as risky as lung biopsies.Dr. Siegesmund testified that radiologists classify different stages ofsilicosis according, to the visibility of nodules, or spots, on x-rays.Stage 1 does not manifest nodules on x-rays. Dr. Siegesmund did not knowof any radiologist who would make a diagnose of silicosis during stage1. Stage 2 manifests tiny modules and may not be reached until thefourth or fifth year after exposure, but is difficult to diagnoseaccurately by x-ray because about 15-20 other diseases mimic silicosisat this stage. Stage 3 is reached in anywhere from four to fifteen yearsafter initial exposure and displays very large nodules that make itpossible to reasonably diagnose the disease. By that time, however,symptoms would have manifested themselves. One of the first symptomsthat 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 generalmedicine, testified that he was opposed to the administration of x-rayswithout his discretion. His opinion was that x-rays were not informativein that the effect of silica on a lung takes years to develop. Dr.Weinberg stated that even after an employee had been exposed to silicafor about five years, a radiologist would be loathe to diagnose acondition as silicosis, as opposed to some other disease, from an x-ray.Dr. Weinberg did testify, however, that he would consider orderingx-rays for employees exposed to silica for five to ten years. He furtherindicated that the Secretary, who had at one time demanded that ITTprovide x-rays annually, was thereby seeking to institute a radiationhazard that was greater than any benefit that might be received from theinformation revealed by the x- rays. Dr. Weinberg testified that x-rayradiation was cumulative and that enough x-rays could cause cancer. Healso conceded, however, that it was possible for x-rays to revealnodulation consistent with silicosis without a patient having exhibitedsymptoms of silicosis like coughs, fatigue, and shortness of breath. Hedid not think that a chest x-ray would show solicitor nodules beforeseven or eight years of exposure to a dust-laden atmosphere. Finally,Dr. Weinberg testified that he could not see any reason for routinelyconducting PFTs, and that PFTs were meaningless unless a patient had acough. But he also testified that he would not hesitate to give PFTsevery three months to those employees working in areas of excessivesilica dust concentrations that had respirator problems. PFTs discloselung dysfunction’s and show if a person has diminished pulmonary capacity.ITT’s medical surveillance program, as it was presented by the testimonyat the hearing, included the presence at the plant of ITT’s consultingphysician for an hour a day, or longer if necessary, four days a week.All employees were required to complete health questionnaires designedto elicit the employees’ own and family health history and theemployees’ occupational history. The questionnaires were analyzed byITT’s physician and, if they revealed possible health problems likecoughs, asthma, past operations affecting an employee’s chest, or a workhistory involving exposure to areas of dust, those possible problemswould be further investigated by the physician. If the physiciandetermined that chest x-rays and\/or PFTs were necessary, ITT was willingto offer those services to the employees to whatever extent wasnecessary. All employees were given pre-employment physical examinationswhich included chest examinations and chest x-rays. Chest x-rays wereavailable to employees after the pre-employment physical examination onthe recommendation of the physician in situations including those whereemployees had symptoms of diseases, where there were changes in thedaily habits of the employees, or where anything suspicious wasdiscerned from the chests of the employees. Any employees specificallyrequesting chest x-rays would be examined by the physician and, if therewas no health reason why an employee should not be given an x-ray, thex-ray would be given.Further, ITT indicated a willingness to annually examine all employeesrequired to work in areas of the plant where the employees were requiredto wear respirators. ITT would make a determination of the physicalability to perform the required work and to use particular respirators.Employees with known respirator problems might be offered PFTs as oftenas every three months in the discretion of Dr. Weinberg.IIIJudge Taylor, in his decision, stated that section 10(c) of the Act,[[2\/]] 29 U.S.C. ? 659(c), requires an employer petitioning formodification of an abatement date to show \”a good faith effort to complywith the abatement requirements of a citation,\” and further that heconsidered the question of implementation of an adequate medicalsurveillance program to be relevant to ITT’s good faith here. The judgefound silicosis is a serious disease that could cause death, and thatearly detection is important in minimizing the adverse effects ofsilicosis. He concluded ITT had not made a good faith effort to abatethe violative conditions because it had not implemented any medicalsurveillance program during the one-year abatement period permitted bythe original citation. Absent proof of any medical program, the judgefound it unnecessary to resolve whether chest x-rays should beautomatically offered on a periodic basis or whether they should beoffered only when ITT’s physician deemed them medically advisable. Thejudge indicated, however, that the evidence established that ITT shouldhave implemented a medical surveillance program with the followingcomponents: 1) annual physical examinations by ITT’s consultingphysician who would review the medical histories of exposed employees asupdated by answers to a questionnaire about the physical condition ofthe employees, 2) annual PFTs for exposed employees, and 3) periodicchest x-rays for employees exposed to silica dust for seven years or more.Finally, the judge rejected an argument by ITT that the Secretary couldnot require PFTs or x-rays because the Secretary has not promulgated astandard requiring them in the circumstances of this case. The judgenoted that this case does not concern whether ITT had been properlycited for failing to offer chest x-rays and PFTs to its employees.Instead, the matter for resolution is whether ITT’s PMA should begranted and the burden of proof is on ITT to show that it acted in goodfaith. The judge concluded that ITT’s interim medical surveillanceprogram was relevant to ITT’s good faith and could be considered indeciding whether to grant the PMA even though no standard requiring sucha program had been promulgated.IVA.ITT petitioned for review of the judge’s decision and formerCommissioner Barnako granted the petition. The principal issue raised inthe petition is whether the judge erred in concluding that ITT’sunwillingness to implement the medical surveillance program sought bythe Secretary demonstrated a lack of good faith so as to justify denialof the PMA.B.ITT argues in its review brief that the Commission may not approve theSecretary’s program because section 6(b)(7) of the Act, 29 U.S.C. ?655(b)(7), permits the Secretary to require medical examinations onlyupon promulgation of a standard.[[3\/]] According to ITT, the Secretary’saction in seeking to require medical examinations in the absence of astandard is arbitrary, and the Commission has the authority to preventthe Secretary from imposing such a requirement. That authority, ITTargues, stems from the third sentence of section 10(c) of the Act,supra, which provides that the Commission may issue an order affirmingor modifying the abatement requirements in a PMA case. The Commissionmust be able to modify the Secretary’s abatement demands on an employer,ITT contends, or the Secretary could freely make unreasonable demandsand be beyond the Commission’s scope of review in PMA proceedings.ITT contends the judge erred in finding that it had not demonstratedgood faith because it had not implemented a medical program sinceissuance of the citation. ITT points out that the stipulated issue wasnot what ITT had done towards implementation of a medical program butwhat it would do in that regard in the future. ITT also argues that thejudge himself did not approve the Secretary’s requirement for annualx-rays, so ITT’s refusal to implement that requirement did notdemonstrate a lack of good faith. In any event, with respect to thethree-or-four month period before the hearing when ITT knew theSecretary wanted ITT to offer annual x-rays and ITT was unwilling to doso, ITT resisted the demand in good faith because the demand was made bynonmedical personnel, did not have any legal basis in the Act, and ITT’sphysician had found the demand medically unwise.C.The Secretary, in his review brief, argues that section 10(c) of the Actbroadly places in issue all \”abatement requirements of a citation\” andconfers blanket authority for an order \”affirming or modifying theabatement requirements\” in a PMA proceeding. The Secretary also arguesthat the criteria which Congress directed be considered in determiningthe appropriateness of an abatement date necessarily involve evaluationof an employer’s interim abatement efforts. Those criteria are the goodfaith efforts of an employer to comply with the abatement requirementsand the consideration of whether tile failure to complete abatement isbecause of factors beyond an employer’s control. Each of these criteria,the Secretary contends, involves an assessment of the steps taken by anemployer short of total abatement. The Secretary also points out thatboth 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 anemployer’s total abatement efforts, including interim protectivemeasures taken while permanent abatement is being accomplished. TheSecretary argues that these proceedings are analogous to thoseassociated with an application for a temporary variance under section6(b)(6) of the Act, 29 ? 655(b)(6), in that in each modifications aresought of abatement responsibilities and compliance dates.In rejecting ITT’s argument that the Secretary’s insistence upon ITT’scompliance with the interim medical program amounts to the improperpromulgation of a standard, the Secretary contends that it does no suchthing in that the interim plan is not generally designed for allemployers but is limited in effect to ITT and in duration to theextended abatement period.Further, the Secretary contends, the fact that citation 2 did notspecifically reference the need for a medical surveillance program doesnot make his subsequent requirement of one arbitrary. His decision as tothe specifics of an interim plan was dictated by the facts in this caseand ITT’s ensuing petition for a lengthy extension of the abatement period.The Secretary concedes the correctness of ITT’s assertion that this casepresents the narrow issue of whether ITT’s PMA should be denied on thebasis of its prospective unwillingness to administer periodic x-ray andannual PFT examinations. The Secretary states that \”under thecircumstances of this case, where the petitioner was not put on noticeof the necessary specifics of a medical plan until the Secretaryobjected to its PMA, we do not believe that the Petitioner’s failure toimplement x-ray and PFT examinations before such time, by itself,establishes a lack of good faith.\” [[6\/]] The Secretary also concedesthat, except for the issue of the medical surveillance plan, ITT’s goodfaith is not being challenged. But the Secretary also states that thejudge’s finding of a lack of good faith is supported by the record. ITTfailed to implement any medical program, the Secretary argues, eventhough the cited standard refers to the interim requirements of 29C.F.R. ? 1910.134, and even though Commission rule 34(b)(4), supra, aswell as the regulation at section 1903.14a(b) (4), supra, refer tointerim protection.The Secretary also argues that the record supports the judge’s findingson the components of an interim medical program, i.e., annual physicalexaminations and PFTs, and periodic chest x-rays for employees exposedto silica dust seven years or more. He argues that all the witnessesagreed that physical examinations, supplemented by personal, medical andwork histories, would aid in the diagnosis of silicosis. He also arguesthat, for the most part, there was agreement on the need for annual PFTsas part of the interim medical surveillance program. He further arguesthat there was ample evidence to support the judge’s finding on thenecessity for periodic x- rays to employees with more than seven yearsof exposure to silica. He states the evidence shows that the developmentof silicosis may usually be accurately traced by a review of chest x-rayexaminations, and that administering x-rays once every three yearsreflects a compromise between health risks associated with x-raysthemselves and health risks associated with the failure to detectsilicosis early enough to prevent the aggravation of the disease causedby continued exposure to silica.VA.At the outset, it is necessary to set forth the respective roles of theSecretary and the Review Commission in PMA proceedings. An employer whoseeks an extension of an abatement date must file a petition requestingthe extension with the Area Director of the U.S. Department of Labor whoissued the citation. The employer must also provide affected employeeswith notice of its filed petition. If neither the Secretary nor theemployees object to the petition, the Secretary has the authority toapprove the petition and the uncontested petition becomes a final order.If, however, either the Secretary, perhaps because of the employer’sunwillingness to implement interim abatement measures specified by theSecretary, or the affected employees object to the petition, theSecretary forwards the petition to the Commission for docketing. Theobjecting parties are allowed ten days to file their reasons forobjecting. The Commission then affords the parties an opportunity for ahearing before an administrative law judge at which the employer has theburden of proving that its request for an extension of time to abate isjustified. Commission Rule of Procedure 34, 29 C.F.R. ? 2200.34. Afterthe hearing, the ALJ determines whether the PMA should be granted. TheALJ’s decision is reviewable by the Commission. Consequently, employersrequiring additional time to abate violations of the Act are not forcedto accede to interim abatement demands of the Secretary. It is thejudge, or the Commission if the case is reviewed, that makes theultimate determination on PMA petitions.The Commission reviews the judge’s decision in this case in the contextof the extended abatement periods requested in ITT’s PMA having alreadyexpired. The important issues raised by the parties, however, remain tobe resolved. Furthermore, if ITT has not yet abated by the time of thisdecision, its actions must be guided by our decision.In making its decision on whether or not to grant a PMA request, theCommission must look to Section 10(c) of the Act, supra, which indicatesthat an employer must demonstrate: (1) a good faith effort to complywith the citation’s abatement requirements, and (2) abatement has notbeen completed because of factors beyond its reasonable control. Thelatter requirement is not in dispute in this case. The parties havestipulated that ITT has not abated because of factors beyond itscontrol. The former requirement is at issue here to a limited extentonly: the parties have stipulated that, except for implementing anadequate medical program, ITT has made a good faith effort to complywith the citation’s abatement requirements. The parties have furtherlimited he extent of the issue by their concession that it is only ITT’sprospective unwillingness to provide x-rays and PFTs to all exposedemployees, unless medically inadvisable, that is in contest.B.For the reasons stated in Part C below, we conclude that an employer’sfailure to take appropriate interim steps to protect its employees froma hazard while in the process of permanently abating a violation canjustify the denial of the employer’s request for an extension of anabatement date. Denial of the employer’s request is proper, even ifthere is no standard which requires such interim protection, because theneed for such protection may not exist in the absence of an extendedabatement period.The judge found that ITT had not shown good faith during the originalabatement period because it had not implemented any medical surveillanceprogram. This finding goes beyond the stipulated issue and, in anyevent, is not supported by the record. Prior to the expiration of thefinal original abatement date, ITT had afforded some medicalsurveillance, though the program did not completely mirror theSecretary’s required medical program as finally constituted on the dayof the hearing. ITT’s medical surveillance program included the presenceat the plant of a licensed physician for an hour a day, or longer ifnecessary, four days a week. All employees were required to completehealth questionnaires designed to elicit the employee’s own and familyhealth history and the employee’s occupational history. Thequestionnaires were analyzed by ITT’s physician and, if they revealedpossible health problems like coughs, asthma, past operations affectingan employee’s chest, or a work history involving exposure to areas ofdust, those possible problems would be further investigated by thephysician. If the physician determined that chest x-rays and\/or PFTswere necessary, they would be offered to the employees. All employeeswere given pre-employment physical examinations which included chestexaminations and chest x-rays. Chest x-rays were available to employeesafter the pre-employment physical examination on the recommendation ofthe physician. Further, at the time of the hearing, it was ITT’sposition that any employee specifically requesting a chest x-ray wouldbe examined by tile physician and, if there was no health reason why theemployee 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 examineemployees required to work in areas of the plant where respirators wererequired. ITT would make a determination of the physical ability toperform the required work and to use particular respirators. Employeeswith known respirator problems might be offered PFTs as often as everythree months in the discretion of Dr. Weinberg.CWe do not believe that ITT acted in bad faith. An employer may have itsdisputes with the Secretary resolved by the Commission without beingfound in bad faith for seeking to do so. Thus, if an employer seeks aPMA and the Secretary seeks to have the employer implement additionalinterim protective measures while full abatement is being accomplished,the fact that the employer disputes the appropriateness of thosemeasures is not indicative of bad faith. If the employer has shown goodfaith in its past abatement efforts, and abatement has not beencompleted because of factors beyond the employer’s, reasonable control,the PMA should be granted. However, if the Secretary is able to show thenecessity of additional interim protective measures during the extendedabatement period, the granting of the PMA should be made conditional onthe employer implementing those measures.We do not agree that an employer cannot be required to take interimabatement measures which are not required by a standard. Even absent aseparate health standard specifying the particulars of a medicalsurveillance program, the Commission may impose an appropriate medicalsurveillance program on ITT. A medical surveillance program constitutesan alternative measure permissible under the Act to protect ITT’semployees during the extended abatement period requested.Procedures in PMA proceedings are analogous to the variance proceduresin section 6(b)(6) of the Act. 29 U.S.C. ? 655(b)(6). An employer filinga PMA with the Commission seeks the modification of a citation’sabatement requirements and an extension of time for compliance with aCommission abatement order. Similarly, under Section 6(b)(6) of the Act,an employer seeks an extension of time for compliance with a standardpromulgated by the Secretary and is required to take steps that areavailable for the protection of its employees even though such steps maynot appear in the requirements of the standard. Thus, in both cases, theemployer seeks the modification of his abatement responsibilities andcompliance schedule from the authority requiring compliance. [[7\/]]Further, the Act in section 10(c) provides that the Commission maymodify abatement requirements in a citation, and Commission rule34(b)(4), supra, acknowledges that employers unable to comply with theabatement requirements of a citation should do all that is feasible toprovide their employees with interim protection. It specifies that a PMAshould contain information on all the available interim steps beingtaken to safeguard employees against the cited hazard during theabatement period. 29 C.F.R. ?? 1903.14a(b)(4), 2200.34 (b)(4).The judge in this case found the evidence establishes that ITT shouldhave implemented a medical surveillance program that included periodicchest x-rays for employees exposed to silica dust for seven years ormore, annual PFTs, and annual physical examinations supplemented byphysician-review of updated medical history questionnaires. The evidenceas summarized below supports the judge’s determination.Dr. Ziem testified that chest x-rays and PFTs, in the vast majority ofinstances, will record the existence of silicosis at an earlier stagethan will physical examinations and questionnaires. She recommendedautomatic x-rays every three years and automatic PFTs annually. Althoughshe recognized that x-rays involve some hazard, she testified that thebenefits to a person of early detection of silicosis were significantlygreater than the hazards from the small amount of radiation received ingetting x-rays every three years. Dr. Siegesmund testified that PFTswere justified on a regular basis and that radiologists may make areasonable diagnosis of silicosis from x-rays in 7-15 years after apatient’s initial exposure to silica dust. Dr. Weinberg testified thatit was possible for x-rays to reveal nodulation consistent withsilicosis without a patient having exhibited symptoms of silicosis. Hedid not think, however, that x-rays would show silicotic nodules beforeseven or eight years of exposure to a dust-laden atmosphere.Accordingly, ITT should have been ordered to implement the medicalprogram approved by the judge.In summary, ITT’s PMA should have been granted conditionally. ITTsatisfied the showings of good faith and inability to complete abatementthat are necessary for the granting of a PHA under section 10(c) of theAct. However, because of the lengthy extended abatement periods involvedhere, ITT was obligated under the Act to protect its employees duringthe extended abatement periods by the implementation of interimabatement measures going beyond those that it was willing to afford aspart of its medical program. Those additional measures consist ofoffering x-rays every three years to each employee exposed to silicadust for at least seven years, unless medically inadvisable, andoffering PFTs annually to each employee exposed to silica dust, unlessmedically inadvisable. Since the extended abatement periods expired asof January 1, 1981, and August 1, 1982, however, ITT is only required toimplement those additional protective measures if it has not yetachieved abatement of citation 2, item 1b.Docket No. 80-1620OSHRC No. 80-1620 stems from the same citation 2, item 1b involved inthe PMA case. The Secretary reinspected ITT’s cited foundries onFebruary 28, 1980, which is after the final abatement date of August 4,1979 specified by the citation, but prior to the extended abatementdates requested in ITT’s PMA. Subsequent to his reinspection, theSecretary issued a Notification of Failure to Correct the violationsalleged in citation 2, item 1b. He also proposed an additional penaltyof $100 a day for each day the violation continued after the finalabatement date of August 4, 1979, a total amounting to $20,800 as of theFebruary 28, 1980 reinspection date. ITT contested the failure tocorrect notification, and the International Molders and Allied WorkersUnion elected party status.The case is before the Commission on interlocutory appeal of JudgeTaylor’s order denying ITT’s motion to dismiss. At the time of thereinspection, and following, the Secretary was attempting to enforceonly conditions for the extended abatement period. Though the Secretarymay oppose a PMA or request conditions on it, only the Commission maygrant or deny a contested PMA, or approve one conditionally. At the timeof the Secretary’s reinspection the Commission had not directed theadditional conditions on granting of an extended abatement period. Thus,ITT was not legally obligated to comply with any additional conditionsin order to qualify for the extended abatement dates it requested, andthe notification of failure to correct is vacated.SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: APR 27 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ) , 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 thissection, administrative or engineering controls must first be determinedand implemented whenever feasible. When such controls are not feasibleto achieve full compliance, protective equipment or any other protectivemeasures shall be used to keep the exposure of employees to aircontaminants within the limits prescribed in this section. Any equipmentand\/or technical measures used for this purpose must be approved foreach particular use by a competent industrial hygienist or othertechnically qualified person. Whenever respirators are used, their useshall 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 theabatement requirements of a citation, and that abatement has not beencompleted because of factors beyond his reasonable control, theSecretary [sic], after an opportunity for a hearing as provided in thissubsection, shall issue an order affirming or modifying the abatementrequirements in such citation. The petition for modification ofabatement 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 standardpromulgated under [section 6(b) of the Act] . . . shall prescribe thetype and frequency of medical examinations . . . which shall be madeavailable, by the employer . . . to employees. . . .\” ITT notes that theSecretary has promulgated the following standards which require x-raysand\/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 writingand shall include the following information:(1) All steps taken by the employer, and the dates ofsuch action, in an effort to achieve compliance during theprescribed abatement period.* * *(4) All available interim steps being taken to safeguard the employeesagainst the cited hazard during theabatement 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 medicalsurveillance plan preceding this PMA proceeding are not in issue in thiscase. However, in his view, when an employer becomes aware that it willbe unable to meet an abatement deadline, it is incumbent on the employerto consider alternative, interim procedures that may be necessary toprotect employee health during any extended abatement period. Theadequacy of an employer’s safety and health program in response to itsrecognition of the need for an extended abatement period may be arelevant factor in determining whether the employer has demonstrated agood faith effort to achieve abatement of cited hazards to the extentpossible.[[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 \”toassure so far as possible every working man and woman in the Nation safeand healthful working conditions and to preserve our human resources. .. .\” 29 U.S.C. ? 651(b). [S]afety legislation is to be liberallyconstrued to effectuate the congressional purpose. (Emphasis added bythe Supreme Court.)The Act’s purpose is initially accomplished by the requirement thatemployers comply with the safety and health standards published in Title29 of the Code of Federal Regulations, 29 U.S.C. ? 654(a)(2), or withsection 5(a)(1) of the Act. 29 U.S.C. ? 654(a)(1).Moreover, the case law developed under the Act provides numerousexamples of situations where an employer who cannot comply with thespecific terms of a standard must nonetheless take alternative measuresdifferent from the standard’s terms to protect employees. For example,an employer on a multi-employer worksite will be relieved ofresponsibility for the exposure of its employees to hazards if it isdemonstrated that the employer did not create the hazards and was unableto abate them and either (1) took realistic alternative measures toprotect its employees or (2) had no knowledge or reasonable notice thatthe hazards existed. Anning-Johnson Co., 76 OSAHRC 54\/A2, 4 BNA OSHC1193, 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.2d1333 (10th Cir. 1982); Electric Smith, Inc. v. Secretary of Labor, 666F.2d 1267 (9th Cir. 1982); DeTrae Enterprises, Inc. v. Secretary ofLabor, 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 establishthe impossibility defense, an employer must prove that: (1) compliancewith the requirements of a cited standard either would be functionallyimpossible or would preclude performance of required work; and (2)alternative means of employee protection are unavailable. M.J. LeeConstruction 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 employermust prove that: (1) the hazards created by compliance with therequirements of a cited standard are greater than those resulting fromnoncompliance; (2) alternative means of protecting employees areunavailable; and (3) a variance application under section 6(d) of theAct, 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 ElectricCo. v. Secretary of Labor, 576 F.2d 558(3d Cir. 1978).Thus, contrary to the dissent, the Commission does not impose additionalrequirements on PMA applicants that are not imposed on other employerswho are unable to abate according to the terms of an applicablestandard. All employers are required to use available alternatives toliteral compliance in those circumstances. As a result, employers neednot file notices of contest or purposes other than good faith resolutionof the merits of citations.”