662 A.2d 256 (Md. 1995), 143, Bethlehem Steel Corp. v. Commissioner of Labor and Industry

CourtCourt of Appeals of Maryland
Citation662 A.2d 256,339 Md. 323
Docket Number143,
PartiesBETHLEHEM STEEL CORPORATION v. COMMISSIONER OF LABOR AND INDUSTRY.
Date25 July 1995

Page 256

662 A.2d 256 (Md. 1995)

339 Md. 323

BETHLEHEM STEEL CORPORATION

v.

COMMISSIONER OF LABOR AND INDUSTRY.

No. 143,

Court of Appeals of Maryland.

July 25, 1995

[339 Md. 324] Eric Hemmendinger (Earle K. Shawe, Shawe & Rosenthal, on brief), Baltimore, for petitioner.

Jonathan R. Krasnoff (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Page 257

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ. [339 Md. 325]

RODOWSKY, Judge.

This judicial review action arises under the Maryland Occupational Safety and Health Act (MOSHA), Md.Code (1991 & 1994 Cum.Supp.), §§ 5-101 through 5-901 of the Labor and Employment Article (LE). The issue is whether, under a citation charging violation of the machine guarding requirements of 29 C.F.R. § 1910.212(a)(1), the burden is on the employer to prove infeasibility of compliance as an affirmative defense. The Court of Special Appeals, in an unreported opinion, held that the burden was on the employer. Because, as reviewed infra, the great weight of federal authority confirms the intermediate appellate court's analysis, we shall affirm.

On August 21, 1991, an employee of Bethlehem Steel Corp. (Bethlehem) was fatally injured while working on a lathe in the tin mill machine shop at the Sparrows Point plant. The employee was polishing a Halogen line plater contact roll. These rolls are used as part of a conveyor line in order to roll steel plates through a chemical solution. Contact with the chemical solution causes deposits on the rolls which must be removed via a polishing operation. The polishing is performed on a Lodge & Shipley lathe by using a strip of emery cloth which an operator loops around the roll allowing the rotation of the lathe to polish the roll. The strip of emery cloth is held at both ends by the operator, and the operator's hands come in close proximity to the lathe's chuck jaws. 1 [339 Md. 326]

The accident occurred when the operator's glove became entangled in a keyway of the roll being polished. 2 The roll was rotating at 344 rpm, and the operator was pulled down under the roll, struck his head, and suffered fatal injuries. An inspector from the Commissioner of Labor and Industry's occupational safety and health staff (MOSH) investigated. No violation was charged concerning the immediate cause of death.

During the investigation the inspector observed the alleged violation involved in this case. The inspector issued a citation citing 29 C.F.R. § 1910.212(a)(1) and charging specifically that "[m]achine guarding was not provided to protect operators and other employees from hazards created by rotating parts of lathe chuck jaws and shims." 3

Bethlehem contested the citation, and the hearing examiner affirmed. The examiner found, inter alia, that it was feasible to provide guarding and that it did not present a greater hazard to the operator during polishing than did unguarded chuck jaws.

On review before the Commissioner, Bethlehem argued that MOSH had not proved that guarding the chuck was feasible. The employer's position was that workers would have to place their hands under the guard in order to perform the polishing operation, so that employee safety would not be improved by any guarding mechanism. Lathe chuck guards are commercially available, and they are affixed to lathes at Bethlehem that are used for other functions. Chuck guards shield the worker from flying chips of solid material and from the splatter of liquids, but,

Page 258

Bethlehem submits, they do not abate [339 Md. 327] the hazard in polishing. The Commissioner held that the "employer has the burden of proving as an affirmative defense that it is impossible to guard the machine in any fashion and that there are no alternate means for protecting employees." On that analysis, and because Bethlehem did not contend that it had established impossibility, the Commissioner upheld the citation of violation.

Bethlehem sought judicial review of the Commissioner's decision in the Circuit Court for Baltimore County. The allocation of the burden of proof concerning feasibility was the only question addressed by the circuit court. It reversed the Commissioner.

The Commissioner appealed to the Court of Special Appeals which reversed the circuit court. The intermediate appellate court agreed that the burden was on the employer under the standard in question, but held that the Commissioner had misstated that burden. Rather than proving that abatement was "impossible," the Court of Special Appeals held that the burden was one of "feasibility." Accordingly, the matter was remanded back to the Commissioner.

On Bethlehem's petition this Court issued the writ of certiorari in order to determine the allocation between the parties of the burden concerning feasibility of compliance to abate an alleged violation of 29 C.F.R. § 1910.212(a)(1). 4 There was no cross petition by the Commissioner, and no party before this Court treats the impossibility/infeasibility issue as embraced within the petition that we granted. 5 [339 Md. 328] I

MOSHA and the federal Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. §§ 651 through 678, are substantially similar. 6 When interpreting federal regulations enforced under MOSHA, we look to federal cases for guidance. J.I. Hass Co. v. Department of Licensing & Regulation, 275 Md. 321, 330, 340 A.2d 255, 260 (1975).

Both acts create two kinds of obligations, one under the "general duty clause," 7 and the other under the "specific duty clause." 8 It is well settled that, when undertaking to establish a violation of the general duty clause, the Commissioner has the burden of proving feasibility of compliance.

"[T]he Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid [339 Md. 329] citation, and

Page 259

to demonstrate the feasibility and likely utility of those measures."

National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1268 (D.C.Cir.1973); see also Faultless Div., Bliss & Laughlin Indus., Inc. v. Secretary of Labor, 674 F.2d 1177, 1189 (7th Cir.1982); Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d 439, 441 (5th Cir.1977); United Steelworkers of Am. AFL-CIO, Local 2610 v. Bethlehem Steel Corp., 298 Md. 665, 680, 472 A.2d 62, 70 (1984). The rule of these cases is driven by the concern that, absent fair notice of what is required or prohibited, there may be a violation of due process.

Similarly, in cases where a citation charges violation of the specific duty clause by citing to a regulatory standard, the same concern has been manifested. Thus, in a case involving a standard other than § 212, the court said that "where only a general standard is involved without suggested or specified means of compliance, the burden is placed upon the Secretary to establish a technological and feasible means of compliance." Quality Stamping Prods. v. OSHRC, 709 F.2d 1093, 1099 (6th Cir.1983); see also Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105, 1113 (7th Cir.1982). On the other hand,

"where a specific duty standard contains the method by which the work hazard is to be abated, the burden of proof is on the employer to demonstrate that the remedy contained in the regulation is infeasible under the particular circumstances."

Ace Sheeting & Repair, 555 F.2d at 441.

For burden of proof allocation purposes those standards that are treated in the same way as the general duty clause are referred to, in abbreviated fashion, as general standards. Conversely, for burden of proof allocation purposes, those standards that are not treated in the same way as the general duty clause are referred to as specific standards.

In the instant case, the issue then can be said to be whether, in the burden of proof context, § 212(a)(1) is general or specific. The entire standard, in relevant part, reads as follows: [339 Md. 330] " § 1910.212 General requirements for all machines.

"(a) Machine guarding--(1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are--barrier guards, two-hand tripping devices, electronic safety devices, etc.

"(2) General requirements for machine guards. Guards shall be affixed to the machine where possible and secured elsewhere if for any reason attachment to the machine is not possible. The guard shall be such that it does not offer an accident hazard in itself.

"(3) Point of operation guarding. (i) Point of operation is the area on a machine where work is actually performed upon the material being processed.

"(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

....

"(iv) The following are some of the machines which usually require point of operation guarding:

....

"(d ) Power presses.

....

"(4) Barrels, containers, and drums....

"(5) Exposure of blades....

"(b) Anchoring fixed machinery...." [339 Md. 331] II

Both parties before this Court claim support for their positions in federal precedents. These include not only decisions of United States Courts of Appeal, but also of the

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Occupational Safety and Health Review Commission, an independent, quasi-judicial agency established by OSHA (the Review Commission or Commission). Bethlehem principally relies on Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir.1978). Review Commission and judicial decisions dealing with § 212 reveal that...

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