Marshall v. Anaconda Co.
| Decision Date | 03 May 1979 |
| Docket Number | No. 78-1637,78-1637 |
| Citation | 596 F.2d 370 |
| Parties | 7 O.S.H. Cas.(BNA) 1382, 1979 O.S.H.D. (CCH) P 23,579 Ray MARSHALL, Secretary of Labor, Petitioner, v. The ANACONDA COMPANY, Montana Mining Division (Great Falls Refinery), and Occupational Safety and Health Review Commission, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Diane E. Burkley, U. S. Dept. of Labor, Washington, D. C., Edward Klein, Atty., U. S. Dept. of Labor, Washington, D. C., for petitioner.
Stephen M. Williams, Butte, Mont., for respondents.
Petition to Review an Order of the Occupational Safety and Health Review Commission.
Before SNEED and ANDERSON, Circuit Judges, and D. WILLIAMS, * District Judge.
The Secretary of Labor petitions to review and set aside an order of the Occupational Safety and Health Review Commission issued January 26, 1978. The Secretary issued citations in June 1977 against respondent Anaconda Company for violations of 29 C.F.R. § 1910.179, a safety standard governing overhead and gantry cranes, occurring at Anaconda's copper refinery at Great Falls, Montana. Respondent duly contested the citations and proposed penalty. The administrative law judge vacated the Secretary's order, holding that the standard involved was merely advisory as to cranes in service before August 31, 1971. The Commission did not assert its discretionary review power and the decision of the administrative law judge became final by operation of 29 U.S.C. § 661(i). 1 This court has jurisdiction under 29 U.S.C. § 660(b). We deny the petition to review.
FACTUAL BACKGROUND.
On April 28, 1971, the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 651 et seq., became effective. The Act empowered the Secretary of Labor "to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce." 29 U.S.C. § 651(b)(3). It also created the Occupational Safety and Health Review Commission (Commission) "for carrying out adjudicatory functions" of the Act. Id. The Secretary adopted the regulations at issue in this case under section 6(a) of OSHA, 29 U.S.C. § 655(a). Congress intended that section to speed implementation of OSHA's purpose by authorizing the Secretary to promulgate as an occupational safety and health standard without notice and hearing, "any national consensus standard . . . unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees." 2 Id.
On May 29, 1971, one month after OSHA's effective date, the Secretary adopted a broad range of industry standards as occupational health and safety standards. These became new Part 1910 of the Code of Federal Regulations. 36 Fed.Reg. 10466 (May 29, 1971). Among the regulations adopted were those at issue here which deal with overhead and gantry cranes, 29 C.F.R. 1910.179(e)(4) ("(e)(4)") and 1910.179(g)(3)(i) ("(g)(3)(i)"). These cranes are large industrial machines with a hoisting mechanism used to lift and lower a load. These cranes can span the width of a building and move back and forth from side to side on a girder structure called a bridge. The bridge girder moves horizontally the length of the building on a fixed runway or set of rails, moving on trolleys. The wheeled portion of the trolley is the "truck." Section e(4) requires the use of rail sweeps on the trucks to move persons or objects off the track before they are contacted by the bridge wheel. Sweeps also prevent jolts that may cause loads to swing dangerously or fall if wheels run over obstructions on the tracks. Section (g)(3)(i) requires cranes to be equipped with a device that automatically disconnects the three motors that drive the crane from the power source in the event of a power failure. This disconnection prevents unexpected crane movement when power resumes after the failure. The Secretary adopted these standards from a safety code originally formulated in 1967 by the American National Standards Institute (ANSI). The OSHA standards here involved were taken verbatim from Chapter 2-1 of the ANSI Code, sections 2-1.7.4(a) and 2-1.9.3(a). 3
The ANSI standards distinguished between rules that were mandatory and those that were merely advisory. Part V of the ANSI Code Introduction explained how the two were differentiated:
Mandatory rules of this Code are characterized by the use of the word "shall." If a rule is of an advisory nature it is indicated by the use of the word "should" or is stated as a recommendation.
The Secretary, however, did not carry over this definition section when adopting the ANSI standards as OSHA regulations. Because he stated an intention to adopt entirely mandatory regulations, such a definition section was superfluous.
The dispute in this case turns on the purport of 29 C.F.R. § 1910.179(b)(2) ("(b)(2)"). That OSHA regulation derives from Section IV of the ANSI Code Introduction, which stated:
After the date on which this Code becomes effective, all new construction and installations Shall conform to its rules. Equipment installed prior to that date Should be modified to conform to its rules unless administrative or regulatory authorities deem that the equipment as installed cannot economically be altered and that the equipment substantially complies with the requirements of the Code.
(Emphasis added). As adopted, (b)(2) included two confusing substitutions. The term "design specification" was substituted for ANSI's "construction and installation" language; in addition, "Shall be modified" was inserted in lieu of ANSI's "Should be modified . . . unless." Thus, (b)(2) originally stated:
All the new overhead and gantry cranes installed after the effective date of the regulations in this subpart shall meet the Design specifications of the American National Standard Safety Code for Overhead and Gantry Cranes, ANSI B30.2.0.-1967. Equipment constructed and installed prior to the effective date of this subpart shall be modified to conform to these specifications.
29 C.F.R. § 1910.179(b)(2), 36 Fed.Reg. 10618 (May 29, 1971) (emphasis added).
Ten weeks later, the Secretary amended (b)(2). 36 Fed.Reg. 15101 (August 13, 1971). As amended, it stated:
All new overhead and gantry cranes constructed and installed on or after August 31, 1971, shall meet the design specifications of the American National Standard Safety Code for Overhead and Gantry Cranes, ANSI B30.2.0-1967. Overhead and gantry cranes constructed before August 31, 1971, should be modified to conform to those design specifications by February 15, 1972, unless it can be shown that the crane cannot feasibly or economically be altered and that the crane substantially complies with the requirements of this section.
(Emphasis added). Thus, "design specifications" remained in (b)(2) and "should be modified . . . unless" returned to the position it had in the ANSI Code Introduction. The accompanying explanation 4 sowed further seeds of confusion by stating that (b)(2) was "revised in order to give some time for the modification of existing overhead and gantry cranes, and to reflect accurately the (ANSI) standard from which the provision is derived." Id. Further, the Federal Register notice specified that notice and public procedures were unnecessary because the changes were nonsubstantive.
Such was the regulatory framework when the alleged violations occurred. Between April 25 and May 9, 1977, OSHA compliance officers inspected the Anaconda refinery at Great Falls, Montana. On June 2, 1977, the Secretary issued citations Inter alia for nonserious violations under section 5(a)(2) of the Act for failure to comply with (e)(4) and (g)(3)(i). The bridge trucks of eleven Anaconda cranes are not equipped with rail sweeps specified in (e)(4); five of the eleven additionally are not equipped with the power disconnecting devices required in (g)(3)(i). The Secretary proposed a $60 penalty for each item, $120 in all, and directed abatement by November 1 of that year. Anaconda timely contested the citation and proposed penalty pursuant to 29 U.S.C. § 659(c); the Secretary's formal complaint and Anaconda's answer followed; and the parties submitted stipulated facts for the presiding judge in lieu of an administrative hearing. The parties stipulated that each of the cranes described in the citation lacked the disconnect devices and/or the sweeps required by the cited standard, and that these cranes were constructed and placed in service before August 31, 1971. The only issue, therefore, was whether the cited standards required that pre-August 1971 cranes be modified to comply with the standards.
On December 27, 1977, the administrative law judge vacated the citation and proposed penalty. He held (e)(4) and (g)(3)(i) merely advisory as to cranes in service before August 31, 1971. The judge determined that the applicability of the regulations to the cited cranes is controlled by the meaning of "should" in (b)(2). The Secretary unsuccessfully petitioned the Commission for discretionary review, and the decision became a final order of the Commission by operation of law on January 26, 1978, 29 U.S.C. § 661(i), 29 C.F.R. 2200.90(b)(3).
To determine whether (b)(2) requires modification of pre-August 1971 cranes, our first concern is whether "design specifications" as used in (b)(2) embraces the (e)(4) and (g)(3)(i) standards. If it does not, then (b)(2) affords no basis to assert that (e)(4) and (g)(3)(i) are other than mandatory. Anaconda, of course, argues that the reference to ANSI "design specifications" refers to those specifications in § 1910.179 derived from the ANSI Code, including (e)(4) and (g)(3)(i). The Secretary, equally understandably, contends that the more narrow "design specifications" intentionally replaced "rules" in the ANSI Code Introduction Section IV. He presents two...
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