J. I. Hass Co., Inc. v. Department of Licensing and Regulation, Division of Labor and Industry for Maryland

Decision Date26 June 1975
Docket NumberNo. 207,207
Citation340 A.2d 255,275 Md. 321
Parties, 1974-1975 O.S.H.D. (CCH) P 19,778 J. I. HASS CO., INC. v. DEPARTMENT OF LICENSING AND REGULATION, DIVISION OF LABOR AND INDUSTRY FOR the State of MARYLAND.
CourtMaryland Court of Appeals

Martin J. Snider, Annapolis (George N. Manis and Manis, Wilkinson & Snider, Annapolis, on the brief), for appellant.

Henry R. Wolfe, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., and Edward M. Ranier, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

LEVINE, Judge.

This appeal stems from a determination by the Maryland Commissioner of Labor and Industry (the Commissioner) that appellant, J. I. Hass Co., Inc. (the employer), had violated two safety standards promulgated pursuant to the Maryland Occupational Safety and Health Law of 1973, Maryland Code (1957, 1969 Repl.Vol., 1974 Cum.Supp.) Art. 89, §§ 28-49B (the Maryland Act). On appeal to the Circuit Court for Queen Anne's County, that determination and the civil penalties of $9,000 and $3,000 imposed therein were affirmed.

In 1973, the employer was engaged in painting the new parallel span of the Chesapeake Bay Bridge (the William Preston Lane Memorial Bridge). On September 6, while being lowered into position to do some sandblasting, two of its employees plummeted into the Bay some 40 feet below when a cable unraveled from a winch and their scaffold collapsed. One of the men swam to safety and was rescued; the body of the other, who died of drowning, was recovered four days later. As a consequence, the employer was cited by appellee, Department of Licensing and Regulation, Division of Labor and Industry, with violations of two safety standards: 29 C.F.R. 1926.451(i)(8) (hereinafter referred to as (i) (8))-'Fail(ure) to have men wearing safety belts secured to a substantial member of the structure . . .'; and 29 C.F.R. 1926.451(i)(11) (hereinafter referred to as (i)(11))-'Guardrails 42 inches in height, with a midrail and toe boards not in use on all four sides of scaffolds . . ..' These violations were characterized as 'Serious and Repeated' under the Act. 1

Previously, on July 27, a similar tragedy had occurred which also resulted in the death of one employee. Citations had been issued at that time: One for violating (i)(8)-'Fail(ure) to require lifelines to be tied off to independent point above scaffold . . .'; and the other for violating (i)(11)-'Failure to provide top guardrails on both open end or open side of two point suspension scaffold and no toe boards or midrails at any point on the scaffold . . ..' These violations were designated as 'serious' and 'willful' within the meaning of the Act, and respective penalties of $5,000 and $2,000 were imposed. The employer paid both and took no steps to challenge the citations-administratively or judicially-as it has done here.

The facts giving rise to these proceedings are virtually free of dispute. Although there were no eyewitnesses to the actual mishap, the uncontroverted evidence shows that while the employer had provided the required safety belts, which were attached to lifelines properly secured to the bridge superstructure, neither of the two workmen was wearing his safety belt when the scaffold collapsed. 2 It is equally uncontroverted that the scaffold had only a back guardrail-with none provided at the front or ends-and no midrails or toe-boards.

Concerned with the 'number and severity of work-related injuries and illnesses which, despite current efforts of employers and government, are resulting in ever-increasing human misery and economic loss,' 3 Congress enacted the Occupational Safety and Health Act of 1970 (the Federal Act), 29 U.S.C. § 651 et seq. Declaring as its purpose 'to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources,' 29 U.S.C. § 651(b), the Federal Act achieves its objectives through programs of research, education and training, and through the development and administration, by the Secretary of Labor, of uniformly applied occupational safety and health standards. As noted in Brennan v. Occupational Safety & Health Review Com'n, 487 F.2d 438, 439 (8th Cir. 1973):

'The Act provides for the development of a 'laundry-list' of violations. Companies are subject to periodic compliance inspections which are carried out at random either upon complaints or upon the inspector's own initiative. Advance notice of an inspection is prohibited, and violators of this provision are subject to criminal sanctions. Violations may be either of standards promulgated by the Secretary (of Labor) or of the 'general duty' provision, a catch-all provision intended to supplement the standards formulated by the Secretary.'

The heart of the Federal Act is the power conferred by § 655 upon the Secretary of Labor to promulgate occupational safety and health standards. 4 That section designates specific and detailed procedures to be followed in the promulgation of standards, including publication in the Federal Register, the right of the public to submit written data or comments, a public hearing if requested, and a right of appeal to the United States Court of Appeals. In the first two years after the Federal Act became effective, however, the Secretary was empowered to adopt, without adhering to the full procedure, any national consensus standard 5 or any established federal standard. 6 The Secretary is also granted the power to provide for emergency temporary standards, and, at the request of an employer, to permit a variance from a standard.

Section 654(a) of the Federal Act imposes a two-fold obligation upon each employer:

'(1) (to) furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

'(2) (to) comply with the occupational safety and health standards promulgated under this chapter.'

When finding a violation of the general duty clause or a specific standard, the Secretary must issue a citation, specifying the violation and fixing a reasonable time for its abatement; and must notify the employer of any proposed penalty. The citation and penalty become final if the employer does not contest them within 15 days.

The civil penalties prescribed by § 666 fall into four categories:

1) A discretionary penalty of not more than $10,000 for an employer who willfully or repeatedly violates any standard;

2) A mandatory penalty of up to $1,000 for a serious violation;

3) A discretionary penalty of up to $1,000 for a violation specifically determined not to be of a serious nature;

4) A discretionary penalty of not more than $1,000 for each day during which a violation continues beyond the time permitted for its correction.

All contested cases are heard by the Occupational Safety and Health Review Commission, an independent adjudicatory agency.

In addition to the duties imposed upon employers, each employee must 'comply with occupational safety and health standards and all rules, regulations, and orders . . . which are applicable to his own actions and conduct.' § 654(b).

In furtherance of its purposes, the Federal Act contemplates extensive state participation in the occupational safety and health field. The states may assert 'jurisdiction under State law over any occupational safety or health issue with respect to which no standard is in effect under (the Federal Act).' § 667(a). The states are permitted to assume responsibility for development and enforcement of 'occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated under section 655 . . .'; the statute provides for the submission of plans designed to achieve these ends. Subsection (c) of § 667 calls for approval of such plans if, in the judgment of the Secretary, they meet the conditions specified in the Federal Act. The primary requirement is that the state plan be at least as effective in providing safe and healthful employment and places of employment as the federal plan.

The Maryland Occupational Safety and Health Law, Art. 89, §§ 28-49B, was enacted as Chapter 59 of the Laws of 1973, effective July 1 of that year. It is substantially similar to the Federal Act. It vests in the Commissioner of Labor and Industry 'the power and authority to administer and enforce the provisions of this subtitle and (the duty to) prescribe such rules and regulations as he may deem necessary to carry out his responsibilities under this subtitle.' Art. 89, § 30. Essentially, it tracks the Federal Act in providing for the promulgation of occupational safety and health standards; and in fixing the duties of the employers and employees, and in establishing citation and enforcement procedures. Additionally, the State Act adopts the same civil penalties that are specified in the Federal Act. With particular reference to the standards, § 31(c) of the State Act provides that: '. . . (T) he Board shall recommend or propose occupational safety and health standards which are or will be at least as effective in providing safe and healthful employment and places of employment as any standard promulgated under the federal Occupational Safety and Health Act of 1970 . . ..'

Having met the applicable federal requirements, the State Act received the approval of the Secretary of Labor on July 5, 1973. 38 Fed.Reg. 17834. Thereafter, the Commissioner, acting on the recommendation of the Occupational Safety and Health Advisory Board created pursuant to § 31(a) of the State Act, adopted as standards under the state plan the general industry standards (29 C.F.R. § 1910) and the construction standards (29 C.F.R. § 1926) promulgated by the Secretary of Labor under the Federal Act. Thus, the standards...

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