747 F.2d 294 (5th Cir. 1984), 81-4379, RSR Corp. v. Donovan

Docket Nº:81-4379.
Citation:747 F.2d 294
Party Name:1984-1985 O.S.H.D. ( 27,122 RSR CORPORATION, Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, and Occupational Safety and Health Review Commission, Respondents.
Case Date:November 26, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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747 F.2d 294 (5th Cir. 1984)

1984-1985 O.S.H.D. ( 27,122

RSR CORPORATION, Petitioner,

v.

Raymond J. DONOVAN, Secretary of Labor, and Occupational

Safety and Health Review Commission, Respondents.

No. 81-4379.

United States Court of Appeals, Fifth Circuit

November 26, 1984

Page 295

T. Timothy Ryan, Jr., Sol., Benjamin Mintz, Judith N. Macaluso, Allen H. Feldman, Attys., Laura V. Fargas, Dept. of Labor, Ray H. Darling, Jr., Executive Secretary, Edward G. Hoban, Earl R. Ohman, Jr., Attys., Washington, D.C., for respondent.

Mary Win-O'Brien, United Steelworkers of America, Pittsburgh, Pa., Peter O. Shinevar, Washington, D.C., for United Steelworkers of America.

Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Before BROWN, TATE and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

RSR Corporation appeals a final order of the Occupational Safety and Health Review Commission, pursuant to section 11(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 660(a). RSR challenges the Commission's finding of a serious violation, 29 U.S.C. Sec. 666(j), of the standards set forth in 29 C.F.R. Sec. 1910.1025(f)(2)(i) and 29 U.S.C. Sec. 654(a)(2) 1 for failure to select and require its employees to wear appropriate protective respirators in accordance with Table II of the Act's lead standard, 29 C.F.R. Sec. 1910.1025. Though RSR argues that its violation of the lead standard was not a "serious" one within the meaning of the Act, the gist of its defense is an attack on the substantive validity of the lead standard itself. RSR seeks to contest the validity of the Table II respirator standards in this section 11(a) review of an OSHA enforcement proceeding, 29 U.S.C. Sec. 660(a), after participating in the promulgation, 29 U.S.C. Sec. 655(b), and pre-enforcement judicial review, 29 U.S.C. Sec. 655(f), of the lead standard. We hold that RSR, aware of both its violation and present complaint at the time of its earlier challenge to the lead standard, is now barred from mounting this attack on the respirator regulation's validity. As its other contentions are without merit, we affirm the Commission's order.

I

RSR is a secondary lead refiner. It has a wholly owned subsidiary in Dallas, Texas, whose operations include battery wrecking. 2 To guard against exposure to resulting airborne lead contaminants, RSR supplied its battery wrecker employees with

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half-mask respirators. In August and September of 1979, a compliance officer of the Occupational Safety and Health Administration inspected this Dallas plant, including the battery wrecker department. As a result of this inspection and airborne lead concentration tests, OSHA issued a citation and notification of proposed penalties alleging that RSR had committed a serious violation of 29 C.F.R. Sec. 1910.1025(f)(2)(i) for failure to select appropriate respirators from Table II of 29 C.F.R. 1910.1025(f)(2)(i) (Table II).

Under OSHA's lead standard, 29 C.F.R. 1910.1025, RSR is obligated to reduce its employees' exposure to airborne lead to fifty micrograms of lead per cubic meter of air, 50 ug/m 3 averaged over an eight hour period. 4 When engineering and work practice controls are inadequate to reduce the lead contamination to or below this permissible exposure limit, PEL, respirators must be employed. 5 Table II of 29 C.F.R. Sec. 1910.1025(f)(2)(i) lists the generic types of respirators that must be employed at various levels of airborne lead contamination. 6 When the proper respirator is worn, it reduces employee exposure to lead by a designated "protection factor." The protection factors assigned the respirators specified in Table II are based on the least effective member of each genre of respirator. In August of 1978, RSR supplied its battery wrecker employees with the 9910 paper half-mask respirator, manufactured by the Minnesota Mining and Manufacturing Company (3M). 7

The OSHA airborne lead tests at the battery wrecker division indicated that employee exposure to airborne lead well exceeded the maximum PEL for which the 3M 9910 was rated in Table II. 8 RSR's own environmental monitoring from February to November 1979 found contamination levels again well exceeding the permissible exposure limit. 9 Blood lead sampling, also

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conducted as part of RSR's monitoring program, revealed that a majority of the battery wrecker employees had blood leads in excess of known toxic levels. 10 The inspection found no other deficiencies in RSR's lead protection practices and the OSHA inspector concluded that the employees' elevated blood levels could thus only be attributed to the use of deficient respirators. 11

OSHA then issued a citation and notification of proposed penalties, alleging that RSR had committed a serious violation of the airborne lead contaminant standard in that it did not select the appropriate respirator from Table II. RSR contested the citation. A hearing was held before a Commission administrative law judge at which RSR conceded its technical violation of the standard, but expressed its belief that the 9910 half-mask respirator provided adequate protection for the battery wrecker workers. It based this belief on actual protection tests performed by the respirator's manufacturer and by RSR itself after the OSHA inspection. 12 The ALJ found the "on-the-spot inspection results ... entitled to considerably more weight than the after-the-fact test results" and concluded that RSR committed a serious violation of the standard in "view of the known injurious effects of overexposure to airborne lead."

RSR also challenged the substantive validity of the respirator regulations, contending that wearer acceptance was not considered in the promulgation of Table II 13, and that the Table's guidelines were based on protection factors derived from the least effective respirator in a particular class. 14 The ALJ found that wearer acceptance was considered in devising the standard and that the Table was therefore validly promulgated. 15 On June 17, 1981, the

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ALJ affirmed the citation and assessed a monetary penalty. The Commission declined RSR's petition for discretionary review and the ALJ's decision became final by operation of law. 29 U.S.C. Sec. 661(i). RSR now appeals. 29 U.S.C. Sec. 660(a).

II

RSR admits it "technically" violated OSHA's lead standard in providing its battery wrecker employees with respirators inappropriate under Table II for the air lead measured at its Dallas plant, 29 C.F.R. Sec. 1910.1025(f)(2)(i). It argues, however, that the Secretary's failure to consider either actual protection factors or wearer acceptance in promulgating the lead standard, rendered the regulation unreasonable and inconsistent with the Act.

The OSHA lead standard, 29 C.F.R. Sec. 1910.1025, was promulgated under the elaborate rulemaking procedures outlined in section 6(b) of the Act, 29 U.S.C. Sec. 655(b). Section 6(b) affords due process safeguards to persons potentially aggrieved by an OSHA regulation by notifying them and providing them an opportunity to comment or object to a proposed standard. 16 Though RSR launched a substantive challenge to Table II for the first time in this section 11(a) review of an enforcement proceeding, 29 U.S.C. Sec. 660(a), 17 it is no stranger to the OSHA lead standard. RSR directly and as a member of industry and trade associations joined in the notice and comment proceedings surrounding the promulgation of the proposed lead regulation. 18 It also participated extensively in the protracted pre-enforcement judicial review of the lead regulation after it issued in November of 1978. 19 Pursuant to section 6(f) of the Act, 29 C.F.R. Sec. 655(f), RSR petitioned for review of the standard in both the Fifth and Second Circuits. 20 These petitions and others were consolidated and transferred to the District of Columbia Circuit. United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189 (D.C.Cir.), cert. denied, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981). In a

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lengthy opinion, the United Steelworkers panel addressed labor union and management challenges to virtually every aspect of the lead standard, both procedural and substantive. 21 RSR filed a supplemental brief in these consolidated proceedings, launching its own attack on the standard as it affected secondary lead refiners and battery breaking operations. The respirator provisions in Table II, however, were never attacked in this litigation, by RSR or anyone else, and thus were not addressed in Judge Wright's comprehensive opinion. 22

The Secretary urges that RSR should nevertheless, be barred by section 6(f) of the Act, 29 U.S.C. Sec. 655(f), from challenging the substantive validity of Table II in this enforcement proceeding, as it could and should have done so in pre-enforcement review. We agree.

Section 6(f) of the Act states, in part, that:

Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard.

29 U.S.C. Sec. 655(f). Though section 6(f) is the exclusive vehicle for pre-enforcement review of an OSHA standard, its preclusive reach in contests of validity made in enforcement proceedings is disputed. The Eighth Circuit has held that all procedural challenges to OSHA standards are barred unless brought within section 6(f)'s sixty day review period. Madison Falls, Inc. v. Marshall, 630 F.2d 628, 629 n. 2 (8th Cir.1980); National Industrial...

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