Bethlehem Steel Corp. v. Occupational Safety and Health Review Com'n

• Decision Date: 24 October 1979
• Docket Number: No. 78-2337,78-2337
• Citation: 607 F.2d 1069
• Parties: 7 O.S.H. Cas.(BNA) 1833, 1979 O.S.H.D. (CCH) P 24,000 BETHLEHEM STEEL CORPORATION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and F. Ray Marshall, Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Third Circuit

Page 1069

607 F.2d 1069

7 O.S.H. Cas.(BNA) 1833, 1979 O.S.H.D. (CCH) P 24,000

BETHLEHEM STEEL CORPORATION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and F. Ray Marshall, Secretary of Labor, Respondents.

No. 78-2337.

United States Court of Appeals Third Circuit.

Argued July 12, 1979.

Decided Oct. 24, 1979.

Dennis V. Brenan (argued), Morgan, Lewis & Bockius, Philadelphia, Pa., for petitioner.

Carin A. Clauss, Benjamin W. Mintz, Allen H. Feldman, Rita E. Seeligson (argued), U. S. Dept. of Labor, Washington, D. C., Marshall H. Harris, U. S. Dept. of Labor, Philadelphia, Pa., for respondents.

Before ADAMS, ROSENN, and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This case presents for our review an order of the Occupational Safety and Health Review Commission (OSHRC) finding Bethlehem Steel Corporation (Bethlehem) to be in serious violation of regulations governing exposure of welders to fluoride compounds and employer responsibility to supply adequate ventilation for welding in confined spaces. The Administrative Law Judge (ALJ) held Bethlehem to be in violation and his decision became the final order of the Commission when OSHRC declined review. Bethlehem petitioned this court for review pursuant to 29 U.S.C. § 660(a). The petition for review will be granted and the orders of the Commission will be vacated and the cause remanded.

I.

The proceedings before us arise from an Occupational Safety and Health Act (OSHA) inspection of Bethlehem Steel's shipyard facility at Sparrow Point, Maryland on April 28, 1977. On this date, government inspectors tested Dennis Hancock, a welder, for exposure to toxic fluorides released in the welding process. Hancock was engaged in welding a unit to be installed in a seagoing liquified natural gas tanker. The area (pocket) in which he was working was triangular shaped and located off a passageway of the unit. The floor was rectangular, approximately seven feet by six feet. The walls sloped upward to form a triangle with the ceiling only six inches by about seven feet rectangularly. It was described as basically a triangle in cross-section. The room was about ten feet high and had a small entryway, approximately fifteen by twenty-three inches.

The welding process caused fluoride particulars to be released into the air from the calcium fluorspar rods used in arc welding. The fluoride particles appeared as a bluish-gray smokey haze. Fluoride contaminants can be highly toxic and prolonged exposure to excessive levels of fluorides may result in serious injuries, even death. On the day of the OSHA inspection, Hancock was supplied by Bethlehem with two mechanical blowers to dissipate the smoke and fumes in his work area. Hancock also wore protective gear consisting of a welding shield, a welding jacket, and a Wilson 1200 mechanical respirator that filtered out some of the fluoride particles.

The OSHA inspectors performed a test to determine whether Bethlehem's welders were being exposed to excessive quantities of fluorides. The test involved the attachment of a sampling pump to Hancock's belt with a cassette containing sampling filters clipped to his collar. The parties dispute the accuracy of the test, Bethlehem claiming that the filters were not placed within Hancock's "breathing zone." The Government's test revealed that Hancock was exposed to a concentration of airborne fluorides measuring 5.3 mg./M 3 for an eight hour time-weighted average, which is in excess of the permissible exposure level under OSHA regulations. ¹ Hancock, although testifying that the smoke and fumes did not bother him, nevertheless discharged black nasal mucus at the end of the day indicating exposure to fluoride contaminants.

Based on its April 28, 1977, inspection and test results, OSHRC issued a citation on June 2, 1977, charging Bethlehem with a serious violation of 29 C.F.R. § 1910.1000(a)(2) (1978), which governs employee exposure to fluoride compounds. Bethlehem contested the citation pursuant to 29 C.F.R. § 659. OSHRC then filed a complaint formally charging Bethlehem with the section 1910.1000(a)(2) violation. In the same complaint, OSHRC additionally charged Bethlehem with serious violations of 29 C.F.R. § 1910.1000(e) (1978), ² and in the alternative, 29 C.F.R. § 1916.31(a) and (b) (1978) or 29 C.F.R. § 1916.57(e) (1978). ³ OSHRC subsequently amended the complaint on September 13, 1977, to substitute an alleged serious violation of 29 C.F.R. § 1910.252(f) (4) and (f)(5) (1978) ⁴ for the original charge of sections 1910.1000(a) and (e) violations. The amended complaint retained the sections 1916.31 and 1916.57 allegations brought in the original complaint.

The ALJ found Bethlehem to be in serious violation of section 1910.1000(a)(2) notwithstanding OSHRC's withdrawal of this charge in the amended complaint. The ALJ also held Bethlehem to be in serious violation of section 1910.252(f) (4) and (f)(5) as well as section 1916.31(a) and (b). The charge under section 1916.57(e) was vacated. Bethlehem was fined $700 for the violations.

II.

Bethlehem initially argues in its petition for review that the ALJ erroneously concluded that it had violated section 1910.1000(a)(2) because OSHRC withdrew that charge in its amended complaint. OSHRC originally brought its charges against Bethlehem under the general industry standards in 29 C.F.R. § 1910. Bethlehem, however, was engaged in the shipbuilding industry to which specific regulations apply under 29 C.F.R. § 1916. OSHRC determined that it would be more appropriate to proceed under the maritime/shipbuilding industry standards in section 1916 in accordance with the principle that more specific standards apply over general standards. Secretary of Labor v. C. L. Cook, 5 OSHC 1628 (1977). Consequently, the original section 1910.1000(a)(2) and section 1910.1000(e) charges were withdrawn and section 1916.31(a) and (b) allegations substituted in their place.

The ALJ nonetheless held Bethlehem to be in violation of the withdrawn section 1910.1000(a)(2) charge, and section 1910.252(f)(4) and (f)(5) (general industry ventilation standards) and the maritime ventilation standards under section 1916.31(a) and (b). In view of OSHRC's withdrawal of the charge under section 1910.1000(a)(2) we vacate that portion of the ALJ's order holding Bethlehem to be in violation of it. This leaves the section 1916.31(a) and (b) and section 1910.252(f)(4) and (f)(5) allegations for our consideration.

III.

Bethlehem was charged with "serious" violations of sections 1916.31(a) and (b) and 1910.252(f)(4) and (f)(5). Both require employers to provide adequate ventilation to prevent accumulation of toxic smoke and fumes when welding is performed in a confined space. The former standards, however, apply to ventilation in the maritime industry, whereas the latter, apply to industry in general. ⁵ Our threshold inquiry must be whether Bethlehem's alleged noncompliance may be deemed "serious," for we need not reach the question of whether the substantive requirements of the standards were violated if such violations may not be characterized as serious. ⁶

To prove a serious violation of the Act, the Government must show:

(A) substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

29 U.S.C. § 666(j).

This statute has been interpreted to mean that when the violation of a regulation makes the occurrence of an accident with a substantial probability of death or serious physical harm possible, the employer has committed a serious violation of the regulation. Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127, 132 (6th Cir. 1978); California Stevedore and Ballast Co. v. OSHRC, 517 F.2d 986, 988 (9th Cir. 1975). The accident itself need only be possible, not probable. The probability requirement in the statute of death or serious physical injury makes it unnecessary for the Government to show that actual injury did in fact occur. Bethlehem argues that no charge of a serious violation may be sustained because (1) the ALJ's findings of fact are insufficient to support such a conclusion and (2) there is no substantial evidence in the record indicating that Hancock's possible exposure to fluorides created a substantial probability of death or serious physical harm.

Bethlehem attacks the adequacy of the ALJ's findings regarding the alleged serious violation of section 1916.31 because the ALJ nowhere relates the evidentiary basis upon which a serious violation might be found. Bethlehem complains that the ALJ's findings of fact do not specify how and why a substantial probability of death or bodily harm existed from inadequate ventilation in Hancock's workspace on the day of the OSHA inspection. Bethlehem argues that the ALJ's findings fail to meet the minimum standards required by the Administrative Procedure Act. We agree.

The Administrative Procedure Act provides in relevant part:

All decisions, including initial . . . decisions, are a part of the record and shall include a statement of

(A) Findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record . . ..

5 U.S.C. § 557(c).

We have held in In re United Corp., 249 F.2d 168, 179 (3d Cir. 1957):

The final order of an administrative agency must include findings and conclusions upon all material issues presented on the record. The reasons or basis for the decision must also be clearly enunciated.

OSHRC itself has held that "(the ALJ's) decision must show on its face what evidence has been considered in reaching his findings and conclusions." P & Z Company, Inc., 6 OSHC 1189, 1191 (1977). The...