Petition for Review of an Order of the Occupational Safety and Health Review Commission.
Seitz, Circuit Judge Stewart, Associate Justice (Retired).*fn* and Adams, Circuit Judge.
STEWART, Associate Justice (Retired)
The principal question presented in this review is whether the Occupational Safety and Health Review Copmmission (Commission) may require an employer, as a condition of receiving a modification of the abatement date contained in a citation, to implement a medical surveillance program that is not required by an occupational safety and health standard. The Commission held that it has this authority, and ITT Grinnell Corp. (ITT) petitions for review of that decision.
Under the Occupational Safety and Health Act (Act) citations issued by the Secretary of Labor for violations of that statute or its implementing regulations must "fix a reasonable time for the abatement of the violation." 29 U.S.C. § 658. An employer may, of course, contest a citation. 29 U.S.C. § 659(c). In addition, an employer who finds himself unable to abate the violation in a timely fashion may file a petition for modification of the abatement date (PMA), and
"[u]pon a showing by an employer of a good faith effort to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control, the Secretary, after an opportunity for a hearing as provided in this subsection, shall issue an order affirming or modifying the abatement requirements in such citation." 29 U.S.C. § 659(c).
Despite the statute's reference to a hearing before the Secretary, the Commission has held that the use of that term was inadvertent and that hearings before the Commission were intended. Secretary of Labor v. H.K. Porter Co., Inc., 19773-19745 O.S.H. Dec. P17,471 (Rev. Comm'n 1974). That holding has not been challenged in this review, and we therefore may, and do, assume that it is correct. With this procedural structure in mind, we turn to the facts of this case.
In 1978, following an inspection of ITT's iron foundry in Columbia, Pennsylvania, the Occupational Safety and Health Administration (OSHA) cited ITT for failing to comply with 29 C.F.R. § 1910.1000(e) (1983). That subsection requires that "administrative or engineering controls must first be determined and implemented whenever feasible" in order to achieve compliance with the maximum permissible levels of employee exposure to various air conteminants specified in § 1910.1000(a)-(d).*fn1 OSHA's citation of ITT alleged that "feasible administrative or engineering controls were not determined and implemented to reduce employee exposure" to silica dust in ITT's cupola and electric foundries, and that ITT employees had been exposed on numerous occasions to silica dust in excess of the amounts permitted by § 1910. The citation required that engineering and administrative controls be implemented to reduce exposure to permissible levels by August 4, 1979.
ITT did not contest the citation, and as a result, the citation became a final order of the Commission. 29 U.S.C. § 659(a). In May of 1979, however, ITT filed a petition for modification of the abatement dates contained in the citation. Specifically, ITT sought a January 1, 1981, abatement date for the electric foundry, and an August 1, 1982, date for the cupola foundry. The Secretary opposed the petition on the ground that ITT's medical surveillance program was inadequate because it did not provide for mandatory pulmonary function tests (PFTs) and chest x-rays for all employees who did not object to the tests. In particular, the Secretary sought to require that ITT offer chest x-rays every three years and PFTs every year until the violation was abated. In the Secretary's view, these tests would aid in the diagnosis of silicosis. ITT contended that the decision whether to offer these tests should be left to the discretion of its plant physician.
A hearing was held before an administrative law judge, who concluded that ITT had not made a good faith effort to abate the violation within the meaning of 29 U.S.C. § 659(c) because it had not implemented any medical surveillance program. Accordingly, the ALJ denied the petition.
A divided Commission reversed, 11 O.S.H.C. 1464 (1983), finding that ITT had implemented a medical surveillance program, although it did not include mandatory x-rays and PFTs. In addition, the Commission held that the parties had stipulated that the only issue was what measures ITT would be required to take in the future, and as a result, the ALJ's finding that ITT had not implemented a medical surveillance program was not relevant to the stipulated issue. The Commission concluded that ITT had acted in good faith and that the parties had stipulated that abatement had not been completed because of factors beyond ITT's reasonable control. Accordingly, the Commission granted the petition. However, it conditioned the extension of the abatement period on ITT's "offering x-rays every three years to each employee exposed to silica dust for at least seven years, unless medically inadvisable, and offering PFTs annually to each employee exposed to silica dust, unless medically inadvisable."*fn2 ITT subsequently filed a petition for review in this court.
At the outset, we must consider the Secretary's motion to dismiss this case at moot. In the Secretary's view, there is no longer a live controversy between the parties because the abatement periods sought by ITT in the petition at issue in this case have expired. ITT responds that the case is not moot because the Commission intended to require that ITT continue the medical surveillance program until abatement was completed, rather than merely until the expiration of the abatement dates in the petition. ITT further contends that abatement has not yet been completed, and that, as a result, the Commission's order has a continuing effect on it.
ITT is correct that the Commission intended to require, as a condition of granting the extension in abatement periods, that ITT continue the medical surveillance program until it had abated the silica dust violation. See 11 O.S.H.C., at 1471, 1474. We need not, however, decide whether the Commission's imposition of conditions that ran beyond the length of the requested extension in the abatement period is sufficient to save this case from mootness. In our view, even if the ...