569 F.2d 1303 (5th Cir. 1978), 76-2619, Marshall v. B.W. Harrison Lumber Co.

Docket Nº:76-2619.
Citation:569 F.2d 1303
Party Name:F. Ray MARSHALL, Secretary of Labor, Petitioner, v. B. W. HARRISON LUMBER COMPANY, and Occupational Safety and Health Review Commission, Respondents.
Case Date:March 23, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1303

569 F.2d 1303 (5th Cir. 1978)

F. Ray MARSHALL, Secretary of Labor, Petitioner,

v.

B. W. HARRISON LUMBER COMPANY, and Occupational Safety and

Health Review Commission, Respondents.

No. 76-2619.

United States Court of Appeals, Fifth Circuit

March 23, 1978

Page 1304

[Copyrighted Material Omitted]

Page 1305

Carin A. Clauss, Sol., Benjamin W. Mintz, Assoc., Michael H. Levin, Dennis K. Kade, Attys., U. S. Dept. of Labor, Washington, D. C., for petitioner.

William R. Childers, Jr., Monroe, Ga., Allen H. Sachsel, Atty., Appellate Section, Civil Div., Dept. of Justice, Washington, D. C., for respondents.

PETITION TO REVIEW AN ORDER OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.

Before GOLDBERG, GODBOLD and SIMPSON, Circuit Judges.

GODBOLD, Circuit Judge:

An employer cited for violations of the Occupational Safety and Health Act (OSHA), 29 U.S.C. §§ 651 et seq., failed to contest the citation. In a subsequent proceeding under a notification of a failure to correct the violation, the employer claimed that the citation inadequately described the particular violations. We agree that the citation's description was inadequate and that the citation did not provide a basis for a subsequent failure-to-correct action.

Congress established an administrative procedure for enforcement of OSHA involving a division of enforcement and adjudicative responsibilities between two agencies, each independent of the other. The Secretary of Labor promulgates regulations, inspects employers, and issues citations when an employer is found in violation of the statute or regulation. An employer cited for a violation has an opportunity to be heard by an administrative law judge appointed by the Occupational Safety and Health Review Commission and, if a Commission member so directs, by the Commission itself. Under the enforcement scheme a citation may lay the basis for a later failure-to-correct action. The citation establishes the nature of the violation and a date by which the employer should correct the violation. Should the employer fail to correct the violation by that date, the Secretary may notify the employer and begin a failure-to-correct action. An employer may be penalized on either a citation or a failure-to-correct notification. Although the procedures for a citation and a failure-to-correct notification are very similar, compare 29 U.S.C. § 659(a) with id. § 659(b), larger penalties may be imposed under a failure-to-correct notification. On a citation an employer "may be assessed a civil penalty of up to $1,000 for each such violation," 29 U.S.C. § 666(c), 1 whereas on a failure-to-correct notification an employer "may be assessed a civil penalty of not more than $1,000 for each day during which such failure or violation continues." 29 U.S.C. § 666(d) (emphasis added).

When an employer receives a citation, he has 15 working days to give notice that he intends to contest the citation. If he gives notice he may contest the citation in a hearing before an administrative law judge. If he fails to give notice the citation and the proposed assessment of penalty "shall be deemed a final order of the Commission and not subject to review by any court or agency." 29 U.S.C. § 659(a). Similarly an uncontested failure-to-correct notification

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will be deemed a final and unreviewable order. 29 U.S.C. § 659(b).

In this case an OSHA compliance officer an industrial hygienist inspected the employer, Harrison Lumber Company, which runs a small north Georgia sawmill. During the inspection he indicated to either Mr. Harrison, the sawmill's president and owner, or his son, or both of them, work stations where the noise level was too high. Afterwards he discussed what steps the employer could take to learn how to reduce the noise to an acceptable level. The Secretary subsequently issued a citation which described two violations in a general way, basically repeating the language of particular regulations. 2 the citation read:

§ 1910.95(b)(1): Employer failed to use feasible administrative or engineering controls when sound levels exceeded those stated in Table G-16 (Request a Compliance Plan be submitted as well as a progress report every 30 days).

§ 1910.95(b)(3): Employer failed to provide a continuing and effective hearing conservation program.

The employer did not contest this citation.

About five months later the OSHA compliance officer returned to reinspect the employer. He found the violations uncorrected. The Secretary...

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