“Docket No. 79-3185-P 80-1620 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. 80-1620Decision 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 whichis before us for review under section 12 (j), 29 U.S.C. ? 661(1), of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?1 651678 (\”the Act\”). In thatdecision, Judge Taylor denied a petition by ITT Grinnell Corp (\”ITT\”) for anextension of the abatement dates specified by the Secretary of Labor (\”theSecretary\”) following a citation alleging ITT’s noncompliance with the healthstandard at 29 C.F.R. ? 1910.1000(e). [[1\/]] Judge Taylor based his denial on ITT’s lackof a good faith effort at compliance with the citation’s abatement requirements in thatITT had not implemented any medical surveillance program during the one-year abatementperiod specified in the citation. The principal issue in the case is whether ITT may berequired to take certain appropriate interim measures to protect its employees as acondition of being granted a request for an extension of the abatement daces. We concludethat ITT may be required to take appropriate interim protective measures. However, underthe circumstances of this case, we conclude that ITT’s petition for modification ofabatement should he granted.Docket No. 80-1620 concerns the same citation involved in Docket No. 79-3185-P. The caseis 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 motionby ITT for dismissal of a Notification of Failure to Correct the violations alleged initem 1b. The notification had been issued by the Secretary subsequent to a reinspection ofITT’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-PI Following an inspection of ITT’s Columbia. Pennsylvania iron foundry, the Secretary issuedthree citations to ITT on August 4, 1978. Only subitem 1b of repeated citation 2 ispertinent to the case on review. Subitem 1b alleged ITT’s failure to comply with section1910.1000(e) in that feasible administrative or engineering controls were not determinedand implemented to reduce employee exposure to respirable quartz-containing (silica) dustat 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 thisitem shall be submitted to the Area Director. Such a plan shall: a) Employ the use ofqualified engineering personnel; b) Include detailed engineering studies and theirresults; c) Outline the ordering of equipment and materials and completion of the designphase; 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\/oradministrative controls and its effectiveness at achieving compliance verified. Ninety-dayprogress letters are requested during the abatement period.The required abatement date for steps 1 and 2 was January 4, 1979; the abatement. date forstep 3 was August 4, 1979. No requirement for a medical surveillance program wasspecified.ITT did not contest citation 2 or its notification of penalty, and the citation became afinal order of the Commission. 29 U.S.C. ? 659(a). On May 11, 1979, however, ITTsubmitted a petition for modification of the abatement dates (\”PMA\”) listed incitation 2. The PMA requested a January 1, 1981 abatement date to implement the requiredcontrols in the electric 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, Pennsylvaniaoffice wrote ITT for additional information to be used to review ITT’s PMA. Page 1 of thatletter contains the following paragraph:(2) Medical Program (Silica Dust Exposure) – We request a copy of ITT’s medical program asit relates to silica dust exposure. In this regard, we expect that diagnostic techniquessuch as 14\” by 17\” chest x-ray examinations and pulmonary function testing willbe addressed. Before an employee is permitted to work in an area where excessive silicadust concentrations exist or wear respiratory protection, the medical program shouldprovide that a written physician’s opinion be obtained for each employee relative to thesuitability for such exposure or respiratory use.Pursuant to the Area Director’s request, ITT forwarded copies of its respirator protectionprogram by letter dated June 13, 1979. Page 4 of that program contains the followingpertinent information.VI. Medical 1. All employees required to utilize respiratory protection devices will be examined bythe Medical Staff, in accordance with the guidelines established by the Company’sconsulting physician. A determination of physical ability to perform the work and use theequipment will be made. 2. Employees required to work in respirator areas will be examined at least once annuallyin accordance with guidelines established by the Company’s consulting physician.3. The Safety & Health Staff will provide the Medical Staff with a current list ofrespiratory areas.Also, ITT’s response indicates its employees in the cited areas were required to wearrespirator protection pending implementation of the required controls.On August 3, 1979,the Secretary filed an Objection to Petition for Modification of Abatement Date with theCommission. On page 7, the Secretary stated that he opposes ITT’s petition becausethe Petitioner’s [ITT’s] medical program as it pertains to silica dust exposure isinsufficient to protect exposed employees from the hazards of said exposure during thelengthy abatement period requested. Specifically. Respondent contends that the medicalprogram should mandatorily provide that chest x-ray and pulmonary function studies beconducted on any employee who works or has worked in any of the cited areas unless saidemployee objects to said diagnostic testing.IIThe hearing on the matter was held before Judge Taylor on September 17, 1979. The partiesstipulated that, except for implementing an adequate medical surveillance program, ITT hadmade a good faith effort to comply with the abatement requirements in citation 2, thatabatement had not been 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 the hearing was whetherchest x-rays and pulmonary function tests (\”PFTs\”) would be offered exposedemployees automatically, unless medically inadvisable, or whether the x-rays and PFTswould be offered to exposed employees only at the discretion of ITT’s plant physician. TheSecretary’s particular demands, only made known to ITT as of the date of the hearing, werethat employees exposed to silica dust be offered chest x-rays every three years and PFTsevery 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 ofsilica dust concentrations inhale the dust. The very fine particles of the dust work theirway down into the air 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 aggravated by continuedexposure to silica dust, but continues even after exposure to silica dust stops. Diagnosisof silicosis before a considerable amount of scarring occurs is difficult and the methodsof diagnosing the disease differ. Early diagnosis is important, however, to preventsilicosis-caused disability.Dr. Grace Ziem, a physician and assistant professor at Johns Hopkins University inoccupational health who testified for the Secretary, stated that there are four essentialelements to a program to detect silicosis. The elements are PFTs, x-rays, physicalexaminations, and questionnaires eliciting information on the personal, family, andemployment history of employees. She testified that in the vast majority of instanceschest x-rays and PFTs would record the existence of silicosis at an earlier stage thanwould physical examinations and questionnaires. It was her recommendation that ITT foundryemployees be given PFTs automatically on an annual basis and be given x- raysautomatically every three years. Although she acknowledged that even one x-ray couldpossibly cause cancer, she testified that the benefit to a person of detecting silicosisat an early point was significantly greater than the hazard from the small amount ofradiation received in getting x-rays every three years. She also stated that doingmoderate to heavy work while wearing a respirator at a hot foundry produces increasedbreathing and heart rate; the resultant potential strain on the heart and the lungs of theemployees placed at risk by such exposure should be evaluated by the most sensitivemethods of evaluation available, particularly PFTs.Dr. Kenneth Siegesmund, a medical research expert and associate professor of anatomy atthe Medical College of Wisconsin who testified for ITT, stated that there is really nogood method of diagnosing silicosis except by the biopsy method of cutting a tiny piece oflung tissue and determining the amount of silica present in it. He testified that chestx-rays should not be given automatically and should only be given when a physician hasample evidence that it is actually necessary. Such evidence should come from PFTs, whichSiegesmund stated were justified on a regular basis, physical examinations, personalhistories of the patient and a knowledge of the diseases contracted and silica exposureexperienced by the patient. Dr. Siegesmund testified that automatic x-rays were unwisebecause of the problems with x-rays, including the fact that even one x-ray could causecancer and the fact that silicosis could not be diagnosed by x-rays until the very latestages of the disease. Dr. Siegesmund did testify, however, that X-rays were not as riskyas lung biopsies.Dr. Siegesmund testified that radiologists classify different stages of silicosisaccording, to the visibility of nodules, or spots, on x-rays. Stage 1 does not manifestnodules on x-rays. Dr. Siegesmund did not know of any radiologist who would make adiagnose of silicosis during stage 1. Stage 2 manifests tiny modules and may not bereached until the fourth or fifth year after exposure, but is difficult to diagnoseaccurately 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 anddisplays very large nodules that make it possible to reasonably diagnose the disease. Bythat time, however, symptoms would have manifested themselves. One of the first symptomsthat would appear is a shortness of breath, and shortness of breath, Dr. Siegesmundtestified, would be shown on PFTs.Dr. Jacob Weinberg, ITT’s consulting physician who practices general medicine, testifiedthat he was opposed to the administration of x-rays without his discretion. His opinionwas that x-rays were not informative in that the effect of silica on a lung takes years todevelop. Dr. Weinberg stated that even after an employee had been exposed to silica forabout five years, a radiologist would be loathe to diagnose a condition as silicosis, asopposed to some other disease, from an x-ray. Dr. Weinberg did testify, however, that hewould consider ordering x-rays for employees exposed to silica for five to ten years. Hefurther indicated that the Secretary, who had at one time demanded that ITT provide x-raysannually, was thereby seeking to institute a radiation hazard that was greater than anybenefit that might be received from the information revealed by the x- rays. Dr. Weinbergtestified 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 consistentwith 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 solicitornodules 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, andthat PFTs were meaningless unless a patient had a cough. But he also testified that hewould not hesitate to give PFTs every three months to those employees working in areas ofexcessive silica dust concentrations that had respirator problems. PFTs disclose lungdysfunction’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, orlonger if necessary, four days a week. All employees were required to complete healthquestionnaires designed to elicit the employees’ own and family health history and theemployees’ occupational history. The questionnaires were analyzed by ITT’s physician and,if they revealed possible health problems like coughs, asthma, past operations affectingan employee’s chest, or a work history involving exposure to areas of dust, those possibleproblems would be further investigated by the physician. If the physician determined thatchest x-rays and\/or PFTs were necessary, ITT was willing to offer those services to theemployees to whatever extent was necessary. All employees were given pre-employmentphysical examinations which included chest examinations and chest x-rays. Chest x-rayswere available to employees after the pre-employment physical examination on therecommendation of the physician in situations including those where employees had symptomsof diseases, where there were changes in the daily habits of the employees, or whereanything suspicious was discerned from the chests of the employees. Any employeesspecifically requesting chest x-rays would be examined by the physician and, if there wasno 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 inareas of the plant where the employees were required to wear respirators. ITT would make adetermination of the physical ability to perform the required work and to use particularrespirators. Employees with known respirator problems might be offered PFTs as often asevery 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 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 medicalsurveillance program to be relevant to ITT’s good faith here. The judge found silicosis isa serious disease that could cause death, and that early detection is important inminimizing the adverse effects of silicosis. He concluded ITT had not made a good faitheffort to abate the violative conditions because it had not implemented any medicalsurveillance program during the one-year abatement period permitted by the originalcitation. Absent proof of any medical program, the judge found it unnecessary to resolvewhether chest x-rays should be automatically offered on a periodic basis or whether theyshould be offered only when ITT’s physician deemed them medically advisable. The judgeindicated, however, that the evidence established that ITT should have implemented amedical surveillance program with the following components: 1) annual physicalexaminations by ITT’s consulting physician who would review the medical histories ofexposed employees as updated by answers to a questionnaire about the physical condition ofthe employees, 2) annual PFTs for exposed employees, and 3) periodic chest x-rays foremployees exposed to silica dust for seven years or more.Finally, the judge rejected an argument by ITT that the Secretary could not require PFTsor x-rays because the Secretary has not promulgated a standard requiring them in thecircumstances of this case. The judge noted that this case does not concern whether ITThad 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 burdenof proof is on ITT to show that it acted in good faith. The judge concluded that ITT’sinterim medical surveillance program was relevant to ITT’s good faith and could beconsidered in deciding whether to grant the PMA even though no standard requiring such aprogram had been promulgated.IVA.ITT petitioned for review of the judge’s decision and former Commissioner Barnako grantedthe petition. The principal issue raised in the petition is whether the judge erred inconcluding that ITT’s unwillingness to implement the medical surveillance program soughtby 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 programbecause section 6(b)(7) of the Act, 29 U.S.C. ? 655(b)(7), permits the Secretary torequire 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 astandard is arbitrary, and the Commission has the authority to prevent the Secretary fromimposing such a requirement. That authority, ITT argues, stems from the third sentence ofsection 10(c) of the Act, supra, which provides that the Commission may issue an orderaffirming or modifying the abatement requirements in a PMA case. The Commission must beable to modify the Secretary’s abatement demands on an employer, ITT contends, or theSecretary could freely make unreasonable demands and be beyond the Commission’s scope ofreview in PMA proceedings.ITT contends the judge erred in finding that it had not demonstrated good faith because ithad not implemented a medical program since issuance of the citation. ITT points out thatthe stipulated issue was not what ITT had done towards implementation of a medical programbut what it would do in that regard in the future. ITT also argues that the judge himselfdid not approve the Secretary’s requirement for annual x-rays, so ITT’s refusal toimplement that requirement did not demonstrate a lack of good faith. In any event, withrespect to the three-or-four month period before the hearing when ITT knew the Secretarywanted ITT to offer annual x-rays and ITT was unwilling to do so, ITT resisted the demandin good faith because the demand was made by nonmedical personnel, did not have any legalbasis 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 inissue all \”abatement requirements of a citation\” and confers blanket authorityfor an order \”affirming or modifying the abatement requirements\” in a PMAproceeding. The Secretary also argues that the criteria which Congress directed beconsidered in determining the appropriateness of an abatement date necessarily involveevaluation of an employer’s interim abatement efforts. Those criteria are the good faithefforts of an employer to comply with the abatement requirements and the consideration ofwhether tile failure to complete abatement is because of factors beyond an employer’scontrol. Each of these criteria, the Secretary contends, involves an assessment of thesteps taken by an employer 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 theCommission itself, by procedural rule 34(b)(1) and (4), [[5\/]] contemplate thatproceedings involving PMAs entail analysis of an employer’s total abatement efforts,including interim protective measures taken while permanent abatement is beingaccomplished. The Secretary argues that these proceedings are analogous to thoseassociated 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 responsibilitiesand compliance dates.In rejecting ITT’s argument that the Secretary’s insistence upon ITT’s compliance with theinterim medical program amounts to the improper promulgation of a standard, the Secretarycontends that it does no such thing in that the interim plan is not generally designed forall employers but is limited in effect to ITT and in duration to the extended abatementperiod.Further, the Secretary contends, the fact that citation 2 did not specifically referencethe need for a medical surveillance program does not make his subsequent requirement ofone arbitrary. His decision as to the specifics of an interim plan was dictated by thefacts in this case and ITT’s ensuing petition for a lengthy extension of the abatementperiod.The Secretary concedes the correctness of ITT’s assertion that this case presents thenarrow issue of whether ITT’s PMA should be denied on the basis of its prospectiveunwillingness to administer periodic x-ray and annual PFT examinations. The Secretarystates that \”under the circumstances of this case, where the petitioner was not puton notice of the necessary specifics of a medical plan until the Secretary objected to itsPMA, we do not believe that the Petitioner’s failure to implement x-ray and PFTexaminations 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’sfinding of a lack of good faith is supported by the record. ITT failed to implement anymedical program, the Secretary argues, even though the cited standard refers to theinterim 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 interimprotection.The Secretary also argues that the record supports the judge’s findings on thecomponents of an interim medical program, i.e., annual physical examinations and PFTs, andperiodic chest x-rays for employees exposed to silica dust seven years or more. He arguesthat 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 interimmedical surveillance program. He further argues that there was ample evidence to supportthe judge’s finding on the necessity for periodic x- rays to employees with more thanseven years of exposure to silica. He states the evidence shows that the development ofsilicosis may usually be accurately traced by a review of chest x-ray examinations, andthat administering x-rays once every three years reflects a compromise between healthrisks associated with x-rays themselves and health risks associated with the failure todetect silicosis early enough to prevent the aggravation of the disease caused bycontinued exposure to silica.VA.At the outset, it is necessary to set forth the respective roles of the Secretary and theReview Commission in PMA proceedings. An employer who seeks an extension of an abatementdate 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 affectedemployees with notice of its filed petition. If neither the Secretary nor the employeesobject to the petition, the Secretary has the authority to approve the petition and theuncontested petition becomes a final order. If, however, either the Secretary, perhapsbecause of the employer’s unwillingness to implement interim abatement measures specifiedby the Secretary, or the affected employees object to the petition, the Secretary forwardsthe petition to the Commission for docketing. The objecting parties are allowed ten daysto file their reasons for objecting. The Commission then affords the parties anopportunity for a hearing before an administrative law judge at which the employer has theburden 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 ALJdetermines whether the PMA should be granted. The ALJ’s decision is reviewable by theCommission. Consequently, employers requiring additional time to abate violations of theAct are not forced to accede to interim abatement demands of the Secretary. It is thejudge, or the Commission if the case is reviewed, that makes the ultimate determination onPMA petitions.The Commission reviews the judge’s decision in this case in the context of the extendedabatement periods requested in ITT’s PMA having already expired. The important issuesraised by the parties, however, remain to be resolved. Furthermore, if ITT has not yetabated 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 lookto 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. Thelatter requirement is not in dispute in this case. The parties have stipulated that ITThas not abated because of factors beyond its control. The former requirement is at issuehere to a limited extent only: the parties have stipulated that, except for implementingan adequate medical program, ITT has made a good faith effort to comply with thecitation’s abatement requirements. The parties have further limited he extent of the issueby their concession that it is only ITT’s prospective unwillingness to provide x-rays andPFTs 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 takeappropriate interim steps to protect its employees from a hazard while in the process ofpermanently abating a violation can justify the denial of the employer’s request for anextension of an abatement date. Denial of the employer’s request is proper, even if thereis no standard which requires such interim protection, because the need for suchprotection 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 periodbecause it had not implemented any medical surveillance program. This finding goes beyondthe stipulated issue and, in any event, is not supported by the record. Prior to theexpiration of the final original abatement date, ITT had afforded some medicalsurveillance, though the program did not completely mirror the Secretary’s requiredmedical program as finally constituted on the day of the hearing. ITT’s medicalsurveillance program included the presence at the plant of a licensed physician for anhour a day, or longer if necessary, four days a week. All employees were required tocomplete health questionnaires designed to elicit the employee’s own and family healthhistory and the employee’s occupational history. The questionnaires were analyzed by ITT’sphysician and, if they revealed possible health problems like coughs, asthma, pastoperations affecting an employee’s chest, or a work history involving exposure to areas ofdust, those possible problems would be further investigated by the physician. If thephysician determined that chest x-rays and\/or PFTs were necessary, they would be offeredto the employees. All employees were given pre-employment physical examinations whichincluded chest examinations and chest x-rays. Chest x-rays were available to employeesafter 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 specificallyrequesting a chest x-ray would be examined by tile physician and, if there was no healthreason why the employee should not be given an x-ray, the x-ray would be given. Also, forthe period covered by its PMA, ITT was prepared to annually examine employees required towork in areas of the plant where respirators were required. ITT would make a determinationof 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 threemonths in the discretion of Dr. Weinberg.CWe do not believe that ITT acted in bad faith. An employer may have its disputes with theSecretary resolved by the Commission without being found in bad faith for seeking to doso. Thus, if an employer seeks a PMA and the Secretary seeks to have the employerimplement additional interim protective measures while full abatement is beingaccomplished, the fact that the employer disputes the appropriateness of those measures isnot indicative of bad faith. If the employer has shown good faith in its past abatementefforts, 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 showthe necessity of additional interim protective measures during the extended abatementperiod, the granting of the PMA should be made conditional on the employer implementingthose measures.We do not agree that an employer cannot be required to take interim abatement measureswhich are not required by a standard. Even absent a separate health standard specifyingthe particulars of a medical surveillance program, the Commission may impose anappropriate medical surveillance program on ITT. A medical surveillance programconstitutes an alternative measure permissible under the Act to protect ITT’s employeesduring 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 themodification of a citation’s abatement requirements and an extension of time forcompliance 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 theSecretary and is required to take steps that are available for the protection of itsemployees 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 andcompliance schedule from the authority requiring compliance. [[7\/]]Further, the Act in section 10(c) provides that the Commission may modify abatementrequirements in a citation, and Commission rule 34(b)(4), supra, acknowledges thatemployers unable to comply with the abatement requirements of a citation should do allthat is feasible to provide their employees with interim protection. It specifies that aPMA should contain information on all the available interim steps being taken to safeguardemployees 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 amedical surveillance program that included periodic chest x-rays for employees exposed tosilica dust for seven years or more, annual PFTs, and annual physical examinationssupplemented by physician-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 of instances, willrecord the existence of silicosis at an earlier stage than will physical examinations andquestionnaires. She recommended automatic x-rays every three years and automatic PFTsannually. Although she recognized that x-rays involve some hazard, she testified that thebenefits to a person of early detection of silicosis were significantly greater than thehazards 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 radiologistsmay make a reasonable diagnosis of silicosis from x-rays in 7-15 years after a patient’sinitial exposure to silica dust. Dr. Weinberg testified that it was possible for x-rays toreveal nodulation consistent with silicosis without a patient having exhibited symptoms ofsilicosis. He did not think, however, that x-rays would show silicotic nodules beforeseven or eight years of exposure to a dust-laden atmosphere. Accordingly, ITT should havebeen ordered to implement the medical program approved by the judge.In summary, ITT’s PMA should have been granted conditionally. ITT satisfied the showingsof good faith and inability to complete abatement that are necessary for the granting of aPHA under section 10(c) of the Act. However, because of the lengthy extended abatementperiods involved here, ITT was obligated under the Act to protect its employees during theextended abatement periods by the implementation of interim abatement measures goingbeyond those that it was willing to afford as part of its medical program. Thoseadditional measures consist of offering x-rays every three years to each employee exposedto silica dust for at least seven years, unless medically inadvisable, and offering PFTsannually to each employee exposed to silica dust, unless medically inadvisable. Since theextended abatement periods expired as of January 1, 1981, and August 1, 1982, however, ITTis only required to implement 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 in the PMA case. TheSecretary reinspected ITT’s cited foundries on February 28, 1980, which is after the finalabatement date of August 4, 1979 specified by the citation, but prior to the extendedabatement dates requested in ITT’s PMA. Subsequent to his reinspection, the Secretaryissued 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 continuedafter the final abatement date of August 4, 1979, a total amounting to $20,800 as of theFebruary 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 denyingITT’s motion to dismiss. At the time of the reinspection, and following, the Secretary wasattempting to enforce only conditions for the extended abatement period. Though theSecretary may oppose a PMA or request conditions on it, only the Commission may grant ordeny a contested PMA, or approve one conditionally. At the time of the Secretary’sreinspection the Commission had not directed the additional conditions on granting of anextended abatement period. Thus, ITT was not legally obligated to comply with anyadditional 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 COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARYDATED: APR 27 1983 The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-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 this section, administrativeor engineering controls must first be determined and implemented whenever feasible. Whensuch controls are not feasible to achieve full compliance, protective equipment or anyother protective measures shall be used to keep the exposure of employees to aircontaminants within the limits prescribed in this section. Any equipment and\/or technicalmeasures used for this purpose must be approved for each particular use by a competentindustrial 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 abatementrequirements of a citation, and that abatement has not been completed because of factorsbeyond his reasonable control, the Secretary [sic], after an opportunity for a hearing asprovided in this subsection, shall issue an order affirming or modifying the abatementrequirements in such citation. The petition for modification of abatement is adjudicatedby the Commission instead of the Secretary. H.K. Porter Co., 74 OSAHRC 59\/D13, 1 BNA OSHC1600, 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 medicalexaminations . . . which shall be made available, by the employer . . . to employees. . ..\” ITT notes that the Secretary has promulgated the following standards which requirex-rays and\/or PFTs: tile asbestos standard at 29 C.F.R. ? 1910.1001 (chest x- rays andPFTs), the inorganic arsenic standard at 29 C.F.R. ? 1910.1018 (chest x-rays), the cokeoven emissions standard at 29 C.F.R. ? 1910.1029 (chest x-rays and PFTs), the cotton duststandard 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 includethe 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 citedhazard 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 planpreceding this PMA proceeding are not in issue in this case. However, in his view, when anemployer becomes aware that it will be unable to meet an abatement deadline, it isincumbent on the employer to consider alternative, interim procedures that may benecessary to protect employee health during any extended abatement period. The adequacy ofan employer’s safety and health program in response to its recognition of the need for anextended abatement period may be a relevant factor in determining whether the employer hasdemonstrated a good 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 \”to assure so faras possible every working man and woman in the Nation safe and healthful workingconditions and to preserve our human resources. . . .\” 29 U.S.C. ? 651(b). [S]afetylegislation 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 withthe 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 situationswhere an employer who cannot comply with the specific terms of a standard must nonethelesstake alternative measures different from the standard’s terms to protect employees. Forexample, an employer on a multi-employer worksite will be relieved of responsibility forthe exposure of its employees to hazards if it is demonstrated that the employer did notcreate the hazards and was unable to abate them and either (1) took realistic alternativemeasures to protect its employees or (2) had no knowledge or reasonable notice that thehazards 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 OSHC1185, 1975-76 CCH OSHD ? 20,691 (No. 12775, 1976). This defense has been accepted byseveral 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 impossibilitydefense, an employer must prove that: (1) compliance with the requirements of a citedstandard either would be functionally impossible or would preclude performance of requiredwork; 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). Toestablish a greater hazard defense, the employer must prove that: (1) the hazards createdby compliance with the requirements of a cited standard are greater than those resultingfrom 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 beinappropriate. Morgan & Culpepper, supra; PBR, Inc. v. Secretary of Labor, 643 F.2d890 (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. Secretaryof Labor, 576 F.2d 558(3d Cir. 1978).Thus, contrary to the dissent, the Commission does not impose additional requirements onPMA applicants that are not imposed on other employers who are unable to abate accordingto the terms of an applicable standard. All employers are required to use availablealternatives to literal compliance in those circumstances. As a result, employers need notfile notices of contest or purposes other than good faith resolution of the merits ofcitations.”