“Docket No. 80-3203 SECRETARY OF LABOR,Complainant, v.PHELPS DODGE CORPORATION,Respondent. UNITED STEELWORKERS OF AMERICA,AFL-CIO, and LOCAL UNION 616. Authorized Employee Representative.OSHRC Docket No. 80-3203DECISION Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners. BY THE COMMISSION:The Secretary of Labor issued to Phelps Dodge Corporation a citation alleging a violationof 29 C.F.R. ? 1910.1018(n)(1)(ii),[[1\/]] a provision of the inorganic arsenic standard.The standard requires in part that employers provide medical examinations to employeesexposed to inorganic arsenic \”without cost to the employee, without loss of pay, andat a reasonable time and place.\” The primary issues here are whether Phelps Dodgeviolated the \”without cost\” and \”reasonable time\” requirements.I. Background and FactsOn January 21, 1975, the Secretary published a proposed standard regulating employeeexposure to inorganic arsenic. 40 Fed. Reg. 3392 (1975). The proposed version of what isnow section 1910.1018(n)(1)(ii) provided that medical examinations \”shall be providedduring the employee’s normal working hours without cost to the employee.\” 40 Fed.Reg. at 3401.The Secretary adopted the final standard in 1978. 43 Fed. Reg. 19584 (1978). Its medicalexamination provision did not require that examinations be conducted during working hours,unlike the proposed standard. It stated that medical examinations \”shall be providedwithout cost to the employee, without loss of pay and at a reasonable time andplace.\” The change was explained as follows in the preamble to the final standard:The proposed standard included a requirement that all medical examinations be given duringthe employees’ normal working hours. The final standard does not include the requirementbecause it may be impractical for shift workers or less convenient for employee oremployer. However, the employer is obligated to pay for the time spent taking the medicalexamination if it is taken outside normal working hours and the exam must be given at areasonable time and place. It is necessary that exams be convenient and without loss tothe employee to assure that they are taken. [43 Fed. Reg. at 19621 (emphasis added).]The preamble cited 29 U.S.C. ? 655(b), section 6(b) of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”), as legislative authority forthe final arsenic standard. 43 Fed. Reg. at 19584- 85. It particularly cited section6(b)(7) of the Act, 29 U.S.C. ? 655(b)(7), as authority for the \”without cost\”requirement. Section 6(b)(7) provides in part that standards for measuring employeeexposure to workplace hazards \”where appropriate . . . shall prescribe the type andfrequency of medical examinations or other tests which shall be made available, by theemployer or at his cost, to employees exposed to such hazards in order to most effectivelydetermine whether the health of such employees is adversely affected by suchexposure.\”Between November 19 and December 4, 1979, physical examinations of Phelps Dodge employeesfor medical consequences of inorganic arsenic exposure were conducted by Phelps Dodge at ahospital located about one mile from its smelter. The examinations required about 15minutes to administer, and were offered to 158 employees from 8:00 to 9:00 a.m. and from4:00 to 5:00 p.m. on the above dates. Employees were allowed to take an examination onlyduring their free time; however, it was possible for them to work for a full day and toreceive their usual wages for the day that an examination was taken. Employees were notcharged an examination fee. If waiting time were included, an employee might have to setaside two hours of time for his examination. At least 50 employees lived at points distantfrom the smelter, and many of them commuted in van pools which required payment whether ornot the employee actually rode the van on a given day. Employees were not paid for thetime consumed in taking an examination or their expenses in traveling to and from anexamination.An initial series of medical examinations was conducted in 1978 during normal workinghours. All covered employees were paid for their time; all participated in thatexamination series. By contrast, when examinations were made available only duringnon-working hours and employees were not compensated for time or associated travelexpenses, only 58% of the affected employees participated. The follow-up examinations arethe subject of this citation.Administrative Law Judge Jerry W. Mitchell relied on the preamble to the standard and heldthat Phelps Dodge failed to comply with the \”without cost\” requirement ofsection 1910.1018(n)(1)(ii). The judge held that the examinations were not provided\”without cost\” because employees were required to provide their own–sometimescostly–transportation to and from the hospital and to sacrifice their personal time totake the examinations. The judge found it significant that these costs apparently caused42% of the covered employees to fail to present themselves for a follow-up examination.The judge also held that the examinations were not provided \”at a reasonabletime\” because \”the employee is expected to expend an uncertain amount of his ownfree time . . . .\” (Emphasis in the original.) The judge found that it would havebeen reasonable for the employer to have offered the examinations during ordinary workinghours. Finally, the judge held that the \”without cost\” and \”reasonabletime\” violations were not \”serious\” under section 17(k) of the Act, 29U.S.C. ? 666(j),[[2\/]] because they could not by themselves cause physical harm.Phelps Dodge and the Secretary filed, petitions for discretionary review. The employerargued that the judge erred in finding \”without cost\” and \”reasonabletime\” violations; the Secretary contended that the violations should have been foundto be \”serious. \” Commissioner Cottine granted both petitions. Expedited reviewwas ordered by the Commission on October 9, 1981.II. Were Medical Examinations Provided \”Without Cost\”?Before the Commission, Phelps Dodge argues first that the judge erred in relying on thearsenic standard’s preamble. It maintains that \”resort to the legislative history isimproper when a statute is clear and unequivocal on its face\” and reasons thatbecause the judge did not expressly find the standard ambiguous, the preamble of thestandard should not have been relied upon. The employer argues next that the drafters onlyintended the word \”cost\” to mean \”the amount or equivalent paid or charged[for an examination] . . . .\” It contends that the \”without loss of pay\”provision addresses the issue of employee wages, and that it is therefore unreasonable toexpect an employer to interpret the \”without cost\” provision to require thepayment of wages to employees taking examinations outside of normal working hours.Finally, the employer claims that the standard as so interpreted is invalid becauseCongress \”did not intend to impose a requirement that employers pay or reimburseemployees undefined costs.\”The Secretary argues that the judge’s interpretation of \”cost\” is consistentwith his own, and contends that an agency’s contemporaneous interpretation of its ownstandard controls unless it is plainly erroneous or inconsistent. The Secretary arguesthat the standard as so interpreted is valid, citing to both section 2(b)(7) of the Act,29 U.S.C. ? 651(b)(7), [[3\/]] and to the specific provision in section 6(b)(7) of theAct. The Secretary does not maintain on review that the \”without loss of pay\” or\”reasonable, place\” provisions of tile standard were violated. The AuthorizedEmployee Representative supports the Secretary’s arguments.A. Interpretation of the \”Without Cost\” ProvisionThe standard requires that \”medical examinations and procedures . . . shall beprovided without cost to the employee. . . .\” \”Cost\” is a broad term ofseveral common meanings, including \”the amount or equivalent paid or given or charged. . .,\” \”whatever must be given, sacrificed, suffered, or foregone to secure abenefit . . .,\” and \” the expenditure or outlay of money, time or Labor . . ..\” Webster’s Third New International Dictionary (1971). Contrary to Phelps Dodge’sargument, these meanings encompass more than the costs of physician fees and laboratorytests. Although fees for physician and laboratory services certainly fall within allsenses of the word, expenditure of time and money necessary to take medical examinationsfall within the second and third – meanings of the word.Phelps Dodge suggests that \”cost\” was used in the most restrictive sense becauseanother term– \”without loss of pay\”–covers the subject of compensation. Thisevidence of intent is weak. The words of the standard alone do not demonstrate any intentby the Secretary to exclusively cover pay matters under \”without loss of pay.\”It would comport at least equally well with the language of the standard to say that theterm \”without loss of pay\” was intended to ensure that employees are notpenalized for taking examinations during their shifts, and to construe \”withoutcost\” to cover expenditure of time after or before shifts. Furthermore, as we shallsee, the Secretary did not use \”cost\” in its most restrictive sense.Although the language of the standard standing alone does not clearly indicate which senseof the word the Secretary employed, the legislative history of the standard does. Thepreamble to the standard clearly states the Secretary’s intent that employees givenexaminations during non-working hours be paid for their time. Inasmuch as the language ofthe standard is susceptible of different meanings, the preamble is the best and mostauthoritative statement of the Secretary’s legislative intent.[[4\/]] We therefore holdthat section 1910.1013(n)(1)(ii) requires that employees given medical examinations duringnon- working, hours be paid for their time. [[5\/]]The language of the standard is clearer and its legislative history nearly as helpful withrespect to transportation costs. Employees who are not reimbursed for extra transportationexpenses incur a \”cost\” in the plainest and most natural sense of the word. Thisfinding is consistent with the preamble, which states the Secretary’s legislative judgmentthat \”[i]t is necessary that exams be convenient and without loss to the employee toassure that they are taken.\” We therefore affirm the judge’s conclusion that section1910.1018(n)(1)(ii) requires that transportation costs incurred to attend medicalexaminations must be borne by the employer and that employees who incurred such costs mustbe reimbursed.In summary, we agree with the judge’s interpretation of the \”without cost\”requirement. We hold that the standard requires that employees be paid for taking medicalexaminations during non-working hours and for extra transportation costs incurred as aconsequence of a decision to provide medical examinations only during non-working hours.[[6\/]] We adopt the judge’s finding that Phelps Dodge violated the standard when employeeswere not compensated for their time or for extra transportation costs.B. Validity of the Standard As ConstruedPhelps Dodge claims that, if the standard is construed to require that employees becompensated for their lost time and reimbursed for their extra transportation expenses, itis invalid. First, Phelps Dodge maintains that section 6(b)(7) of the Act–the mostpertinent statutory authority for the standard’s \”without cost\”requirement–does not authorize the Secretary to require that employers bear these costs.Section 6(b)(7) requires, \”where appropriate,\” that health standards\”prescribe the type and frequency of medical examinations or other tests which shallbe made available, by the employer or at his cost, to employees exposed to such hazards inorder to most effectively determine whether the health of such employees is adverselyaffected by such exposure.\” Phelps Dodge appears to argue that the statutory phrase\”by the employer or at his cost\” could only have meant to refer to the paymentof physician and laboratory fees. It therefore maintains that Congress did not permit theSecretary to require employers to bear other costs. Second, Phelps Dodge argues that,because the Act’s drafters rejected a so-called \”strike-with-pay\” amendment,Congress did not intend that employers compensate workers who are absent from theworkplace. It relies on Whirlpool Corp. v. Marshall, 445 U.S. 1, 17 (1980).The question here is whether the standard is invalid because it exceeds the Secretary’sdelegated authority under the statute or is inconsistent with the intent of Congress.[[7]]See &generally United steelworkers v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980), cert.denied, 453 U.S. 913 (1981). We agree with the District of Columbia Circuit that theSecretary has been granted \”almost unlimited discretion to devise means to achievethe congressionally mandated goal,\” including the authority to require that employersbear the cost of protective measures. 647 F.2d at 1230. Therefore, we conclude that arequirement that employers pay employees for time spent taking a medical examination andfor associated transportation costs lies well within the general range of the Secretary’sauthority. We find no specific limitation on that general authority to adopt thisrequirement.There is no indication in the language of section 6(b)(7) that Congress intended to forbidthe Secretary from adopting a standard such as this. As we have indicated, the word\”cost\” is a broad term of several meanings, some encompassing the expenses atissue here. Phelps Dodge has not pointed to, and we are unaware of, any legislativehistory of section 6(b)(7) that shows that Congress intended by the use of the word\”cost\” to forbid the Secretary from imposing upon employers more than the costof physician and laboratory fees. Section 6(b)(7) is not merely an authorization; it is anexpress direction to the Secretary. It generally requires the Secretary to include, at aminimum, a medical examination provision in health standards. Because Congress’ expresspurpose in section 6(b)(7) was to \”most effectively determine whether the health of .. . employees is adversely affected . . . \” (emphasis added), it would beinappropriate to construe the term \”cost\” in the section as a limitation on theSecretary’s authority under section 6(b)(7) to assure that medical examinations are taken.Moreover, even if section 6(b)(7) were intended to refer only to the cost of physician andlaboratory fees, it does not follow that Congress intended to forbid the Secretary fromusing his general rulemaking authority under section 6(b) to require employers to bearother expenses related to medical examinations.We are also unconvinced that Congress’ rejection of a so- called\”strike-with-pay\” provision shows an intent to forbid a requirement thatemployees be paid for time spent taking medical examinations outside working hours. Thestrike-with-pay provision provided that under certain circumstances noted below, allemployer shall not require any employee to be exposed to toxic concentrations of asubstance unless certain information is provided to employees and protective measures aretaken, \”or unless such exposed employee may absent himself from such risk of harm forthe period necessary to avoid such danger without loss of regular compensation for suchperiod.\” [[8\/]] Representative Daniels, the sponsor of the provision, proposed todelete the provision after it aroused controversy. In debate, Senator Williams, the chiefsponsor of the successful Senate bill, S. 2193, 91st Cong., 2d Sess. (1970), explained whythe Senate bill contained no strike-with-pay provision: \”Rather than raising apossibility for endless disputes over whether employees were entitled to walk off the jobwith full pay, it was decided in committee to . . . [give] the employees the right torequest a special . . . inspection.\” Leg. Hist. at 416.It bears emphasis that the rejected strike-with-pay provision apparently permittedemployees to unilaterally decide whether they were entitled to be absent from work basedon criteria derived from \”ad hoc, informal action by (the Secretary of Health,Education, and Welfare].\” Steelworkers, 647 F.2d at 1233. Employees were to determine(1) whether they were still exposed to the concentrations of toxic substances identifiedby the Secretary of Health, Education, and Welfare as hazardous; (2) whether the employerhad provided tile required information; and (3) whether adequate personal protectiveequipment allowing \”established work procedure:, to he performed\” had beenprovided. The provision’s apparent guarantee of regular compensation also threatened tocolor the employees’ subjective judgment that these conditions existed. These features ofthe \”strike-with-pay\” provisions raised the potential for \”endlessdisputes\” mentioned by Senator Williams.By contrast, the requirements of this standard result from OSHA rulemaking, are not basedon employees’ subjective evaluations, and do not raise a similar potential for controversyand abuse. See id. It is the employer who determines where and when examinations are to begiven. It is the employer, not the employee, who determines whether employees are to workan entire shift, and whether regular workplace operations are to be interrupted. It is thestandard, not the employee, that determines to whom and with what frequency examinationsare to be provided. See sections 1910.1018 (n) (3) (i)-(iii). [[9\/]]Finally, we agree with the District of Columbia Circuit that the mere requirement ofcompensation for non-working time does not conflict with the view of the legislativehistory set forth by the Supreme Court in Whirlpool. There, the Supreme Court examined thelegislative history of the strike- with-pay provision and stated that \”Congress veryclearly meant to reject a law unconditionally imposing upon employers an obligation tocontinue to pay their employees their regular pay checks when they absented themselvesfrom work for reasons of safety.\” 445 U.S. at 17-19. However, as the D.C. Circuitobserved:In characterizing the Daniel’s bill here the Court may have stressed the issue ofcompensation, but it was clearly speaking only in the context of a worker’s self-initiateddecision to leave the job after making a subjective decision that the workplace wasdangerous. The Court did not address, and of course had no reason to address, the questionof requiring compensation of workers who are removed from a job-perhaps against theirwill–according to objective regulatory criteria.Steelworkers, 647 F.2d at 1234 n. 69 (emphasis added).111. Were Medical Examinations Provided at \”Reasonable Times\”? Examinations were offered on November 19-22, 26-29 and December 3-4, 1979, from 8:00 to9:00 a.m. and from 4:00 to 5:00 p.m. Phelps Dodge employees worked on several differentschedules. Some worked \”straight days\” (7:00 a.m.-3:30 p.m.); most worked arotating shift. \”A,\” \”B,\” and \”C\” shifts worked,respectively, 7:30 a.m.-3:00 p.m., 3:30 p.m.-11:30 p.m., and 11:30 p.m.-7:30 a.m.; theshifts rotated on November 25, 1979. A few electricians worked a special rotating shiftthat had starting and quitting times an hour earlier than the standard rotating shift.An examination took about 15 minutes to administer. Three employees testified to theamount of time they had to wait to take examinations conducted in the two-week period fromNovember 19 to December 4. One waited an hour for an examination that consumed one-halfhour. Another was released from work twenty minutes early, \”waited for a littlewhile\” to be examined, and left the hospital 40 minutes after he arrived. A thirdemployee testified that he left the hospital about an hour after he arrived.[[10\/]]Judge Mitchell ruled that Phelps Dodge had failed to provide medical examinations \”ata reasonable time\” within the meaning of section 1910.1018(n)(1)(ii). In the judge’sview, the available times were unreasonable because employees were required to wait fromone-half hour to one-and-a-half hours after the end of their workshifts before they couldbegin an. examination. The judge characterized this delay as \”long anduncertain\”; he also found that the employer failed to provide an opportunity for anyexaminations to be taken before the beginning of a workshift.Phelps Dodge contends that the judge both misconstrued the facts and misapplied thestandard. The employer first takes exception to the finding that examinations were notprovided before the start of an employee’s workshift. Phelps Dodge also argues that thejudge failed to consider whether the offered times were themselves reasonable, and insteadconcluded that different times would have been more reasonable. The Secretary addressesthe \”reasonable time\” issue only in a footnote, arguing that \”theuncertainty as to how much of the employees’ time would be required made the schedulingunreasonable. . . . Uncertainty is a deterrent since it interferes with an employee’splanning of his off-duty time.\” The United Steelworkers argues that the offered timeswere not reasonable for \”B\” shift employees because they would have to beexamined between 8:00 and 9:00 a.m. on a day when they would not begin work until 3:30p.m.We do not agree with Judge Mitchell that Phelps Dodge failed to provide medicalexaminations \”at a reasonable time\” within the meaning of the standard. It hasnot been demonstrated that either the times at which examinations were offered or theamount of time that an employee could expect to devote to an examination wereunreasonable. Although the judge’s finding that Phelps Dodge \”definitely did notprovide any opportunity for employees to take the exam immediately before theirshifts\” is accurate for the two- week examination period that is principally atissue, it is inaccurate as to subsequent dates which we consider relevant.Taking the union’s argument first, we find that the pre- arranged examination times werenot shown to be unreasonable for \”B\” shift employees. On November 25, 1979, inthe middle of the two-week-long, principal examination period, the shifts rotated suchthat \”B\” shift became \”A\” shift; former \”B\” shift employeesthen worked from 7:30 a.m. to 3:30 p.m. Any inconvenience to former \”B\” shiftemployees was mitigated because they could then have scheduled an examination between 4:00and 5:00 p.m.We also reject the Secretary’s argument that we find a \”reasonable time\”violation based on uncertainty as to how much time would be taken up by the medicalexamination. After the two- week period ended, Phelps Dodge made extensive efforts tocontact those employees who had failed to sign up or show up for an examination in aneffort to get as many employees examined as possible. [[11\/]] Phelps Dodge’s industrialhygienist testified without rebuttal that she, along with the employer’s safety inspectorand two technicians, contacted each previously unexamined employee to try to schedule aconvenient examination. The industrial hygienist stated that employees who failed to showup or sign up were contacted \”usually three, four, or five times … well intoJanuary, February and March [of 1980].\” These subsequent examinations were notrestricted to the previously set times; several examinations were scheduled for times anddays of the week not previously available. As for the length of waiting time, the recordreveals that employees endured modest waiting periods, with only one employee reporting await of more than one hour for an examination during the principal two-week period. It isworth noting that where over one hundred employees are required to be provided withexaminations, some Uncertainty as to the timing and duration of those examinations maywell be unavoidable. The standard requires only that examinations be offered \”at areasonable time,\” and the evidence is persuasive that employees were givensubstantial freedom to select a convenient date and time to be examined. We therefore findthat, in light of all the circumstances, Phelps Dodge did not fail to provide examinations\”at a reasonable time,\” and we reverse that part of the judge’s decision thatfound a violation of the \”reasonable time\” requirement of section 1910.101.3(n)(1)(ii).IV.The judge found that the failure to provide examinations without cost and at a reasonabletime was an other than serious violation because Phelps Dodge’s failure to comply with therequirements of the standard did not constitute \”a condition or situation which isthe cause of tile resulting injury.\” (Emphasis in the original.) The judge statedthat \”[t]he cause of the physical harm here, if any does result, is the exposure ofthe affected employees to inorganic arsenic, not failure to provide the required medicalexaminations. . . .\”The Secretary argues that the judge’s analysis is wrong under Anaconda Aluminum Co., 81OSAHRC 27A\/A2, 9 BNA OSHC 1460, 1477, 1981 CCH OSHD ? 25,300, p. 31,349 (No. 13102,1981). We held there that one must look to \”the hazard against which the standard isintended to protect,\” and that a serious violation may be found where death orserious physical harm could, rather than would, result from a violation. In the view ofboth the Secretary and the Steelworkers, a failure to provide examinations without costincreases the probability that any illness will go undetected and therefore that employeeswill suffer serious physical harm or death.Phelps Dodge argues that an employee’s failure to take a physical examination could not inand of itself cause physical harm, and notes that the evidence in this case nowheredemonstrates that any employee has suffered illness as a result of exposure to inorganicarsenic.The Secretary is not required to show that an incident or a life- threatening disease willoccur or is substantially probable to occur in order to establish a serious violation.Kaiser Aluminum & Chemical Co., 82 OSAHRC 41\/B1, 10 BNA OSHC 1893, 1896-97, 1982 CCHOSHD ? 26,162, p. 32,974-75 (No. 77-699, 1932); Anaconda Aluminum Co., supra; see alsoUsery v. Hermitage Concrete- Pipe Co., 584 F.2d 127, 131-134 & n.5 (6th Cir. 1978).Instead, the Commission has inquired whether a disease could result from the violativecondition, and whether there is a substantial probability of death or serious physicalharm if the disease does occur. Kaiser Aluminum & Chemical Co., supra; AnacondaAluminum Co., supra. As the Secretary notes, we made clear in Anaconda that in determiningwhether a disease could result from the violative condition, we look to the hazard againstwhich the standard is intended to protect.The Secretary stated in the preamble to the standard that hehas carefully reviewed the substantial body of evidence relating to the carcinogenicity ofinorganic arsenic and has concluded that it is clearly a human carcinogen. . . . There isa substantial body of epidemiologic studies of arsenic-exposed workers in varyingenvironments showing excess risk of lung cancer where the one common factor is exposure toinorganic arsenic.43 Fed. Reg. at 19586. The Secretary also noted that it has not been established that asafe level of exposure to inorganic arsenic exists. Therefore, \”the permissibleexposure limit must be set at the lowest level feasible.\” 43 Fed. Reg. at 19600.Medical surveillance is required by the standard even before the PEL is exceeded,apparently in light of the absence of a demonstrated safe exposure level, see 43 Fed. Reg.at 19613, and in order \”to provide for early diagnosis of health effects of inorganicarsenic exposure,\” 40 Fed. Reg. at 3398; see also 43 Fed. Reg. at 19620-21 (adoptingrationale from proposed standard; sputum cytology described as \”effective tool forearly detection of respiratory cancer\”). It has also been demonstrated that earlyevidence of harmful exposure to inorganic arsenic–especially, as here, where no safeexposure levels have been demonstrated–is critical if exposed workers are to avoid veryserious medical consequences. See Appendix C to ? 1910.1018 (inorganic arsenic exposureposes risk of lung cancer, skin cancer, dermatitis, poisoning, perforation of the nasalseptum. and other serious health effects). The standard thus requires the employer tooffer medical examinations without cost to determine that employees have not contractedcancer or other serious illnesses. Therefore, because section 1910.1018(n)(1)(ii) isdesigned to protect employees against the contraction or progression of serious illnessesby requiring medical surveillance procedures that would permit early detection of suchillnesses, see Anaconda Aluminum, 9 BNA OSHC at 1477, 1981 CCH OSHD at p. 31,349, weconclude that Phelps Dodge’s failure to provide physical examinations \”withoutcost\” constitutes a serious violation. We reverse the judge’s finding that theviolation was other than serious, and find Phelps Dodge in serious violation of the Act. V.The Secretary proposed a $480 penalty for the alleged \”without cost,\”\”without loss of pay,\” of reasonable time,\” and \”reasonableplace\” violations. The judge assessed a penalty of $100 for the \”withoutcost\” and \”reasonable time\” violations. The Commission considers thefollowing factors when assessing penalties: the size of the business, the gravity of theviolation, the employer’s good faith, and its history of previous violations, if any.[[12\/]] The record reflects that Phelps Dodge is the largest smelter operation in thestate of Arizona, with 3200 employees at its Morenci Branch smelter. However, the gravityof the violation is low, inasmuch as the medical surveillance program involved less than57 of all employees at the Morenci Branch. Phelps Dodge demonstrated good faith incontinuing to offer exams at nearly any convenient time for its, employees after theNovember 19- December 4, 1979, series of follow-up exams. The employer received threecitations in the two years previous to the inspection, all of which became final orders.In light of the above factors, we consider a penalty of $100 to be appropriate.Accordingly, the judge’s decision is affirmed in part and reversed in part. The portion ofCitation No. 1 that alleged a violation of the \”without cost\” provision of thestandard is affirmed as serious; a penalty of $100 is assessed.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr. Executive SecretaryDATED: APR 27 1983\u00a0The 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\/]] That standard provides:? 1910.1018 Inorganic arsenic.* * *(n) Medical Surveillance- — (1) General — * * *(ii) Examination by physician. The employer shall assure that all medical examinations andprocedures are performed by or under the supervision of a licensed physician, and shall beprovided without cost to the employee, without loss of pay and at a reasonable time andplace.[[2\/]] Section 17(k) of the Act states:For purposes of this section, a serious violation shall be deemed to exist in a place ofemployment if there is a substantial probability that death or serious physical harm couldresult from a condition which exists, or from one or more practices, means, methods,operations, or processes which have been adopted or are in use, in such place ofemployment unless the employer did not, and could not with the exercise of reasonablediligence, know of the presence of the violation.[[3\/]] Section 2(b)(7) declares that Congress intended to achieve the goals of the Act by,among other things, \”providing medical criteria which will assure insofar aspracticable that no employee will suffer diminished health, functional capacity, or lifeexpectancy as a result of his work experience . . . .\”[[4\/]] Phelps Dodge argues that the judge erred it. consulting the legislative history ofthe standard without expressly finding that the standard is ambiguous. We find no error inthe judge’s approach. The Supreme Court has made clear that \”[w]hen aid toconstruction of the meaning of words, as used in the statute, is available, therecertainly can be no ‘rule of law’ which forbids its use, however clear the words mayappear on ‘superficial examination.’ \” United States v. American TruckingAssociations, 310 U.S. 534, 543-544 (1940); see Watt v. Alaska, 101 S.Ct. 1673, 1677-78(1981)(legislative history may be used to show that drafter \”did not intend words ofcommon meaning to have their literal effect\”). See generally Murphy, \”Old MaximsNever Die: The ‘Plain Meaning Rule’ and Statutory Interpretation in the ‘Modern’ FederalCourts,\” 75 Colum. L.Rev. 1299 (1975). Of course, the best evidence of legislativeintent, and the first source to consult, is the language of the statute or regulation. SeeDawson Chemical Co. v. Rohn & Haas Co., 448 U.S. 176, 187 (1980); see also Church ofScientology v. United States Department of Justice, 612 F.2d 417, 422 (9th Cir. 1979)(\”the plainer the language, the more convincing contrary legislative history mustbe\”). However, the language of this standard is not plain. Commissioner Cottine notes that the use of legislative history to resolve ambiguities instatutory or regulatory language is an appropriate interpretive aid. See United MineWorkers v. FMSHRC, 671 F.2d 615 (D.C. Cir. 1982), cert. denied, 103 S.Ct. 239 (1983);Jordan v. Department of Justice, 591 F.2d 753 (D.C. Cir. 1978) (en banc). Reliance onlegislative history is properly rejected when it results in an interpretation contrary toan unambiguous statutory requirement, United Mine Workers v. FMSHRC, supra; National SmallShipments Traffic Conference,Inc._v. Civil Aeronautics Board, 618 F.2d 819 (D.C. Cir.1980), or creates an ambiguity rather than resolves one. Jordan v. Department of Justice,supra.[[5\/]] Phelps Dodge briefly argues that another portion of the standard’s legislativehistory supports its construction. The proposed version of the standard stated thatmedical examinations \”shall be provided during the employee’s normal working hourswithout cost to the employees.\” 40 Fed. Reg. at 3401. Phelps Dodge starts with thepremise that employees would necessarily have been paid under this proposed standard; ittherefore reasons that the term \”without cost\” in the proposed standard couldonly have referred to physician and laboratory fees. Even if we were to assume that thispremise is correct, it does not follow that the term \”without cost\” was used inthe same sense in the final standard. After all, the proposed standard did not even.permitexaminations to be given during non-working hours. This requirement of the proposedstandard was omitted from the final standard because the Secretary thought it\”impractical for shift workers or less convenient for employee or employer.\” See43 Fed. Reg. at 19621 (explaining changes from proposed standard). \”Withoutcost\” could therefore have been used by the proposed standard in the limited sensesuggested by Phelps Dodge, but used in a different sense in the final standard, whichpermits non-working hour examinations. In any event, this evidence is not enough toovercome the most authoritative evidence of what the Secretary meant by the finalstandard–its preamble.[[6\/]] Phelps Dodge appears to suggest that it lacked fair notice of the judge’sinterpretation of the standard. However, the record shows that it had actual notice of thepreamble in 1978, and sought legal advice concerning its proper interpretation. Inasmuchas all that due process requires is a fair and reasonable warning of the regulation’srequirements, see Sun Ship, Inc., 82 OSAHRC 69\/A2, 11 BNA OSHC 1028, 1036 n.19, 1983 CCHOSHD ? 26,353, p. 33,425 n.19 (No. 16118, 1982), and cases cited, the employer’s fairnotice argument is rejected.[[7\/]] On April 7, 1981, the U.S. Court of Appeals for the Ninth Circuit remanded theinorganic arsenic standard to OSHA for reconsideration in light of the Supreme Courtdecision in Industrial Union Department v. American Petroleum Institute, 448 U.S. 607(1980). ASARCO, Inc. v. OSHA, 647 F.2d 1 (9th Cir. 1981). The case was before the NinthCircuit on consolidated industry petitions challenging the standard under section 6(f) ofthe Act, 29 U.S.C. ? 655(f), which authorizes judicial review of standards issued by theSecretary. The court specifically retained jurisdiction of the case and ordered that thestandard remain in effect pending resubmission and until further order of the court.Pursuant to the order of the court OSHA conducted additional hearings and received publiccomments. On January 14, 1983, OSHA published its Supplemental Statement of Reasons forthe Final Rule. After an extensive review of the evidence OSHA concluded that no change inthe inorganic arsenic standard that went into effect on August 1, 1978, was warranted. 48Fed. Reg. 1864 (1983). Phelps Dodge Corp. is a party to the pending industry challenge.Although the Commission has the authority to consider an enforcement challenge to astandard’s statutory validity, see Rockwell Int’l Corp., 80 OSAHRC 118\/A2. 9 BNA OSHC1092, 1980 CCH OSHD ? 24,979 (No. 12470, 1980), the Commission also has the discretion topostpone its decision in a case raising such a challenge when a parallel challenge undersection 6(f) is pending. A postponement would be consistent with the public policyfavoring single-forum review of challenged agency action embodied in 28 U.S.C. ? 2112(a).See American Civil Liberties Union v. Federal Communications Commission, 486 F.2d 411(D.C. Cir. 1973); Eastern Air Lines, Inc. v. Civil Aeronautics Board, 354 F.2d 507 (D.C.Cir. 1965); see also United Steelworkers of America, AFL-CIO v. Marshall, 592 F.2d 693 (3dCir. 1979). We have decided, however, not to exercise our discretion to postponeconsideration in this case. The provision of the inorganic arsenic standard involved inthis case has been in effect since August 1, 1978, pursuant to promulgation, 43 Fed. Reg.19589 (1978), and by court order, ASARCO Inc. v. OSHA, supra. The Commission is thestatutory forum for the adjudication of enforcement actions arising under the Act. 29U.S.C. ? 651(b)(3). Also, the same circuit in which the arsenic standard is underchallenge has recently recognized the propriety of considering challenges to the validityof a standard in an enforcement proceeding. See Marshall v. Union Oil Co. of California,616 F.2d 1113, 1117-18 (9th Cir.1980). Furthermore, the challenge to the standard’svalidity is encompassed in the direction for Commission review of this case under 29U.S.C. 661(i) and Commission consideration has been expedited under 29 C.F.R. ? 2200.101.In addition, neither party has raised or in any way addressed this issue although bothparties to this adjudicatory proceeding are parties to the ASARCO litigation. In view ofthe continued enforcement of the standard, the expedited status of the case, and theCommission’s authority as the primary forum for the adjudication of enforcement actions,we proceed with a decision on Phelps Dodge’s challenge to the validity of the standard inthis case.[[8\/]] H.R. 16785, 91st Cong., 2d Sess. ? 19(a)(5), p. 78 (1970)(as reported), reprintedin Subcommittee on Labor of the Senate Committee on Labor & Public Welfare, 92ndCong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970,893, 970 (1971)(\”Leg. Hist.\”).[[9\/]] These provisions require that the examinations he given. at least annually forcovered employees who are under 45 years of age with fewer than 110 years of\”exposure over the action level and at least semi-annually for other covered employees. Thestandard also requires that if an employee has not taken an examination within six monthspreceding the termination of his employment, the employer must provide such an examinationupon termination.[[10\/]] A fourth employee testified that although examinations and waiting time usuallyconsumed about an hour, he once had to stay at the hospital for two hours. It is not clearfrom his testimony that this two-hour stay occurred during the principal two-weekexamination period.[[11\/]] Although the citation and complaint allege a violation date of \”on or aboutMay 6, 1980,\” the stipulation filed with the judge and the evidence presented at thehearing make clear that the parties intended to focus both on the November 19-December 4,1979 period as well as on subsequent dates and times. See Federal Rule of Civil Procedure15(b).[[12\/]] Section 17(j), 29 U.S.C. ? 666(1), provides:The Commission shall have authority to assess all civil penalties provided in thissection, giving due consideration to the appropriateness of the penalty with respect tothe size of the business of the employer being charged, the gravity of the violation, thegood faith of the employer, and the history of previous violations.”