744 F.2d 344 (3rd Cir. 1984), 83-3287, ITT Grinnell Corp. v. Donovan

Docket Nº:83-3287.
Citation:744 F.2d 344
Party Name:ITT GRINNELL CORPORATION, Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Respondent.
Case Date:September 25, 1984
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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744 F.2d 344 (3rd Cir. 1984)



Raymond J. DONOVAN, Secretary of Labor, United States

Department of Labor, Respondent.

No. 83-3287.

United States Court of Appeals, Third Circuit

September 25, 1984

Argued June 14, 1984.

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Edward C. Brewer, III, John P. Campbell (argued), Ford & Harrison, Atlanta, Ga., for petitioner.

Francis X. Lilly, Frank A. White, Dennis K. Kade, Judith N. Macaluso, Andrea C. Casson, Linton W. Hengerer (argued), U.S. Dept. of Labor, Washington, D.C., for respondent.

Before SEITZ, Circuit Judge, STEWART, Associate Justice (Retired), [*] and ADAMS, Circuit Judge.


STEWART, Associate Justice (Retired).

The principal question presented in this review is whether the Occupational Safety and Health Review Commission (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. Sec. 658. An employer may, of course, contest a citation. 29 U.S.C. Sec. 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. Sec. 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. p 17,471 (Rev.Comm'n 1974). That holding has not been challenged in this review, and we therefore may, and do, assume

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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. Sec. 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 contaminants specified in Sec. 1910.1000(a)-(d). 1 OSHA's citation of ITT alleged that "[f]easible 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 Sec. 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. Sec. 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. Sec. 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." 2 ITT subsequently filed a petition for review in this court.

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At the outset, we must consider the Secretary's motion to dismiss this case as 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 extended conditions do not keep the case alive, the dispute in this case is capable of repetition yet evasive of review.

In Finberg v. Sullivan, 634 F.2d 50 (3d Cir.1980), this court, sitting en banc, delineated the boundaries of this mootness doctrine:

To avoid mootness on [the ground that a case is capable of repetition yet evasive of review], a complaining party must demonstrate a "reasonable expectation" that he will be subject to a recurrence of the activity that he challenges. He must also show that the activity is "by its very nature" short in duration "so that it could not, or probably would not, be able to be adjudicated while fully 'live.' "

Id. at 55, quoting Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam) and Dow Chemical Co. v. EPA, 605 F.2d 673, 678 n. 12 (3d Cir.1979) (citations omitted). There is no question that both requirements are satisfied in this case.

Because of ITT's potential liability for penalties for failure to abate the condition for which it was cited, we believe that there is a reasonable likelihood that ITT will file additional petitions for modification of the abatement date. Further, we believe that it is likely that the Secretary will make similar demands to those made in this case and that the Commission's response to those demands will be similar to its response in this case. For these reasons, we conclude that ITT has a " 'reasonable expectation' that [it] will be subject to a recurrence of the activity [it] challenges." 3

ITT is potentially liable for failure-to-abate penalties because the period for abatement contained in the citation has expired and because ITT has not yet abated the conditions for which it was cited. 4 The Secretary may, therefore, initiate failure-to-abate proceedings against it. 29 U.S.C. Sec. 659(b); see Marshall v. B.W. Harrison Lumber Co., 569 F.2d 1303, 1305 (5th Cir.1978). 5 And under Sec. 666(d), "[a]ny employer

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who fails to correct a violation for which a citation has been issued ... within the period permitted for its correction ... may be assessed a civil penalty of not more than $1,000 for each day during which such failure or violation...

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