Advance Bronze, Inc. v. Dole
| Decision Date | 26 October 1990 |
| Docket Number | No. 89-3688,89-3688 |
| Citation | 917 F.2d 944 |
| Parties | 21 Envtl. L. Rep. 20,512, 14 O.S.H. Cas.(BNA) 1857, 1990 O.S.H.D. (CCH) P 29,137 ADVANCE BRONZE, INC., Petitioner, v. Elizabeth DOLE, Secretary of Labor; and the Occupational Safety and Health Review Commission, Respondents. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert D. Moran (argued), Washington, D.C., for petitioner.
Ray Darling, Secretary, Washington, D.C., for respondent Occupational Safety & Health Review Com'n.
Maureen M. Cafferkey, Office of the Sol., U.S. Dept. of Labor, Cleveland, Ohio, Patrick D. Gilfillan (argued), U.S. Dept. of Labor, Office of the Sol., Washington, D.C., for respondent U.S. Dept. of Labor.
Before KEITH and MILBURN, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.
Advance Bronze, Inc. ("Advance") petitions this court for review of the June 27, 1989 final order of the Occupational Safety and Health Review Commission (the "Commission"). The Commission found that Advance violated the Occupational Safety and Health Act, 29 U.S.C. Secs. 651 et seq. (the "Act"); the federal standards regulating lead contaminants, 29 C.F.R. Sec. 1910.1025 et seq.; and the federal regulations governing personal protective equipment in the workplace, 29 C.F.R. Secs. 1910.132 et seq. (collectively the "lead standards"). Advance argues that the Administrative Law Judge ("ALJ") erred by finding that it had violated the lead standards. Furthermore, Advance contends that the lead standards are: legally invalid; inapplicable to its operations; and not enforceable against its nonferrous foundry. For the reasons set forth below, we AFFIRM the June 27, 1989 final order of the Commission.
In January 1988, representatives of the United States Secretary of Labor (the "Secretary") 1 conducted an inspection of Advance's Lodi, Ohio, nonferrous foundry. As a result of the inspection, the Secretary determined that Advance had failed to correct violations of the lead standards that had been cited in 1985. The Secretary then issued several failure-to-abate notices and cited Advance for nine violations.
Advance contested the Secretary's notification and citations. After a hearing, the ALJ vacated two violations of the lead standards and affirmed seven others, assessing a total penalty of $11,180. Pursuant to 29 U.S.C. Sec. 661(j), Advance petitioned the Commission for review of the ALJ's decision. The Commission refused to grant review, and the ALJ's decision became the Commission's final order on June 27, 1989. On July 24, 1989, Advance filed a timely notice of appeal.
In United Steelworkers of America v. Marshall, 647 F.2d 1189, 1204 (D.C.Cir.1980) cert. denied, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981) (hereinafter "Steelworkers "), the D.C. Circuit summarized and persuasively justified the 1971 lead standards:
[I]n the United States today, where industry consumes annually over one million tons of lead, at least 800,000 workers, representing 120 occupations in over 40 industries, are exposed to airborne lead on the job and thereby face the dangers of lead poisoning.
As scientific means of measuring lead exposure and lead absorption have improved over the last 50 years, scientists and the government have set lower figures for the maximum tolerable level of airborne lead exposure, but have struggled in setting a precise permissible exposure limit (PEL). A PEL of 550 Sg/m 3 (500 micrograms of lead per cubic meter of air) was once the consensus figure, but in 1933 the United States Public Health Service recommended, and many industries at least theoretically adopted, a goal of 150 Sg/m 3. In 1957 the American Conference of Governmental Industrial Hygienists increased the recommended maximum to 200 Sg/m 3, but in 1971 lowered it once again to 150 Sg/m 3. However, in that same year, 1971, the newly created Occupational Safety and Health Administration, acting without rulemaking under Section 6(a) of the OSH Act, 29 U.S.C. Sec. 655(a) (1976), adopted the "national consensus standard" recommended by the American National Standards Institute, which set a PEL, measured as an eight-hour time-weighted average, of 200 S/m 3.
Steelworkers, 647 F.2d at 1204 (citations omitted). In addition, the 1971 lead standards required employers to achieve the PEL with administrative and engineering controls whenever feasible and use personal protective equipment, such as respirators, only as supplements. 29 C.F.R. Sec. 1910.1000(e).
In 1973, the Director of the National Institute for Occupational Safety and Health ("NIOSH") advised the Secretary of Labor to lower the PEL to 150 Sg/m 3. Two years later, the NIOSH Director suggested that the Secretary lower the PEL still further. See Steelworkers, 647 F.2d at 1204. After conducting public hearings in 1977, the Secretary closed the record on August 8, 1978 and issued the final lead standards (hereinafter "the lead standards") that reduced the PEL from 200 Sg/m 3 to 50 Sg/m 3. See id. (citing 29 C.F.R. Secs. 1910.1025 et seq.).
The lead standards mandate several levels of employer compliance methods. The employer must implement engineering and work practice controls to meet the PEL; 2 if these controls are insufficient, then the employer must provide employee respirators 3 as a supplement. See 29 C.F.R. Sec. 1910.1025(e)(1)(i) ().
Prior to issuing its opinion, the Steelworkers court considered industry challenges to the Secretary's rulemaking and on March 1, 1979, stayed certain provisions of the lead standards pending judicial review. See 44 Fed.Reg. 14554-14555 (Mar. 13, 1979) (quoting Steelworkers, No. 79- 1048 (D.C.Cir. Mar. 1, 1979) (order granting stay)). During the stay, the court ordered that the Secretary's 1971 lead standards, 29 C.F.R. Sec. 1910.1000, Table Z-2 [200 Sg/m 3], remain in effect. See id. After publishing the court's order in the Federal Register, the Secretary announced that it would continue to enforce the 1971 lead standards' PEL of 200 Sg/m 3 until the court issued its final judgment. Thus, 29 C.F.R. Sec. 1910.1025(e)(1), which requires compliance with a 50 Sg/m 3 PEL through engineering and work practice controls, was neither implemented nor enforced during the stay. See id.
On August 18, 1980, the Steelworkers court upheld the lead standards issued in 1978. 647 F.2d at 1204, 1311. The court affirmed the Secretary's determination that reducing ambient lead from 200 to 50 Sg/m 3 would substantially reduce a significant risk of harm to employees exposed to lead contaminants. See id. at 1250, 1270. The court also concluded that the Secretary's record evidence was insufficient because it failed to demonstrate that 50 Sg/m 3 could be achieved through engineering and work practice controls in certain industries, including the nonferrous foundries. See id. at 1311. Thus, the court remanded the case with instructions that the Secretary reconsider the feasibility of 50 Sg/m 3 as a standard for the industries in question, including the nonferrous foundry industry. See id.
For the nonferrous industry, the court held that part of the March 1, 1979 stay pertaining to engineering and work practice controls would remain in effect pending the Secretary's feasibility studies. 4 However, during the Secretary's reconsideration, the nonferrous foundry industry and other remand industries would be "immediately required to meet the PEL of 50 Sg/m 3 by some combination of engineering, work practice and respirator controls." Steelworkers, 647 F.2d at 1311.
Advance manufactures bronze bearings for the defense, automotive and mining industries. To produce the bearings, Advance melts and molds bronze scraps and ingots. This process exposes Advance employees to lead contaminants. The exposed employees include: the furnace tenders, who operate the furnaces during the melting process; the set-up people, who prepare the molds; and the pourers, who carry and pour the molten metal into the molds.
During the Secretary's January 1988 inspection, lead levels in the foundry areas at Advance measured 322.4 Sg/m 3, 585.5 Sg/m 3, 778 Sg/m 3, 1128 Sg/m 3. During the January 1988 inspection, Advance used respirators to protect the foundry workers.
Advance's employees wear cotton uniforms with spats and air hats. The Secretary has determined that the cotton uniforms will not protect employees against a major splash of molten metal. Advance does not require its employees to wear aprons or leggings to protect against splashes of molten metal. Although aprons are available at the foundry, Advance does not require that they be worn. Advance considers aprons and leggings hazardous, arguing that metal sparks might become trapped in the back of an apron or legging and cause an employee to be burned.
The Secretary inspected Advance's workplace in April 1985, and cited Advance for numerous violations of 29 C.F.R. Secs. 1910.1025 et seq. After the citation was issued, Advance and the Secretary entered into a settlement agreement in June 16, 1986, which became the Commission's final order on August 25, 1986. Advance agreed to schedule abatement dates for the cited violations. Within thirty days, Advance agreed: to institute a written procedure for the use of respirators, aprons and leggings; to follow the appropriate air monitoring schedule; and to refer employees for medical examinations, if warranted by blood tests...
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