Chao v. Gunite Corporation

• Decision Date: 24 March 2006
• Docket Number: No. 04-4017.,04-4017.
• Parties: Elaine CHAO, Secretary, Department of Labor, Petitioner, v. GUNITE CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

442 F.3d 550

Elaine CHAO, Secretary, Department of Labor, Petitioner, v. GUNITE CORPORATION, Respondent.

No. 04-4017.

United States Court of Appeals, Seventh Circuit.

Argued September 9, 2005.

Decided March 24, 2006.

COPYRIGHT MATERIAL OMITTED

Ronald J. Gottlieb (argued), Department of Labor Office of the Solicitor, Washington, DC, for Petitioner.

Robert E. Mann (argued), Geneva, IL, for Respondent.

Before BAUER, POSNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

After issuing a number of citations against Gunite Corporation for violations of occupational safety and health regulations, the Secretary of Labor failed to convince the Occupational Safety and Health Review Commission to uphold four of the charges. The Secretary has petitioned this court to reverse the Commission's decision. We conclude that the Secretary is correct: the Commission's decision is not supported by substantial evidence in the record and therefore the case must be remanded to the agency with instructions to affirm the citations.

I

Gunite's foundry in Rockford makes brakes and wheels for heavy trucks. Its process involves melting scrap iron and then pouring the molten iron into molds created from a mixture of sand, clay, and water. The molds then pass along a series of interconnecting conveyor belts that transport and cool the iron pieces. As they move along the conveyer belts, the castings are shaken from the molds; in the process, dust containing respirable silica becomes airborne. The amount of this dust is enormous; the process uses some 400 tons of sand per hour. Breathing silica is dangerous for the foundry's workers, as it can lead to silicosis, a deadly disease that primarily affects the lungs. The Occupational Safety and Health Administration (OSHA) has accordingly set ceilings called permissible exposure limits, or PELs, on the amount of silica that may be present in the air. See 29 C.F.R. § 1910.1000(c).

Gunite's foundry was built in the first half of the twentieth century. From the start, it has been plagued with the problem of controlling the amount of silica dust escaping into the air. In 1977 and again in 1981, OSHA cited Gunite for violations of the silica PEL. That problem has intensified since the installation of the conveyer belt system in 1989. The plant manager described the initial installation of the conveyor belts as "a disaster." In order to control the airborne dust, the plant first tried spraying water to keep the dust down. When that failed to make a difference, Gunite installed covers over the conveyer belts. They too were ineffective, even though they were still being used several years later when OSHA entered the picture. In 1990, one of Gunite's insurers reported that employee exposure to silica exceeded a different measure, the "threshold limit value" set by the American Conference of Governmental Industrial Hygienists. Two upgrades later, Gunite still had too much silica in the air. Another insurer measured the air four times between June 1996 and March 1998 and found that foundry employees — including those at the positions listed in the citations at issue before us — were being exposed to levels of respirable silica in excess of OSHA's PEL. That insurer, Kemper-NATLSCO, recommended in 1996 that Gunite require its employees to wear individual respirators until the company could implement feasible engineering and administrative controls to limit employee exposure. Gunite seems to have ignored that recommendation; two reports from Kemper-NATLSCO in 1997 indicated that employees still were not being required to wear the individual respiratory protection. In 1996 and 1997, Gunite recorded three cases of silicosis in its OSHA logs. Gunite itself describes its efforts to deal with excess silica from 1991 through 1998 as involving four major engineering projects that together were intended to bring the foundry into compliance with the silica PEL and other federal regulations. The last of these, installation of new covers and a ventilation system over the conveyor belts, was planned and being implemented in 1998 during the OSHA inspection, though it did not become fully functional until March 1999.

Since 1971, OSHA regulations have required facilities with excess respirable silica to use engineering or administrative controls "whenever feasible" to attain compliance with the PEL. 29 C.F.R. § 1910.1000(e). Only when feasible engineering or administrative controls are insufficient to bring silica levels below the PEL may a company turn to individualized protective equipment to supplement those controls. Id. This "hierarchy of controls" privileges engineering and administrative controls because they "make respiratory protection automatic, while respirators are dependent on use and constant attention and are subject to human error." American Iron & Steel Inst. v. OSHA, 182 F.3d 1261, 1269 (11th Cir.1999). See also Advance Bronze, Inc. v. Dole, 917 F.2d 944, 947 n. 2 (6th Cir.1990) (discussing the hierarchy in the context of lead standards).

The OSHA inspection leading to the citations involved in the Secretary's petition took place between May and October of 1998. During the inspection, OSHA representatives took samples that showed that workers in four positions at the foundry were exposed to about 1.6 times the PEL for respirable silica in an eight-hour shift. OSHA assigned three members of its Health Response Team (HRT) to Gunite's case and asked them to evaluate Gunite's administrative and engineering controls. The HRT came up with a list of proposed administrative and engineering controls that it concluded would alleviate the airborne silica problem. The team based its recommendations for engineering controls "on general principles of ventilation and industrial hygiene which have been shown to be effective in reducing contaminant levels in a variety of industries." One control measure highlighted in the report was the use of "clean air islands," which are devices that blow clean air at the at-risk employees; the fresh air creates a bubble around each employee that does not contain dangerous levels of silica. Other measures on the list included installing physical barriers to block the areas where the most dust was kicked up into the air and improving housekeeping and maintenance. Finally, the report mentioned the new system of covers for the conveyor belts that Gunite was in the process of implementing during the OSHA inspection, although it opined that the new system would solve the problem for only three of the four employee positions that were overexposed to silica.

Based on its investigation of the foundry, the Secretary issued three citations containing various items, each alleging violations of federal regulations. Among those were six items based on the sampling results and the HRT's report alleging that Gunite had committed serious and willful violations of 29 C.F.R. § 1910.1000(c) (the air contaminant regulation) by exposing employees to respirable silica in amounts in excess of OSHA's PEL and of 29 C.F.R. § 1910.1000(e) by failing to implement feasible engineering or administrative controls. Another item alleged a violation of 29 C.F.R. § 1910.134(e)(4) (1997) by failing to inspect to ensure proper respirator use. The Secretary also alleged a willful violation of 29 C.F.R. § 1910.95(g)(6) for failure to obtain annual audiograms. Of these charges, only four are at issue in this petition: items 8a and 8b of citation 1, which charge serious violations of § 1910.1000(c) and (e) for overexposing three "mold station" workers (a metal pourer, coreset/blowoff operator, and mold line technician) to respirable silica and for failing to determine and implement feasible administrative or engineering controls to achieve compliance with the PEL; and items 3a and 3b of citation 2, which charged willful violations of the same standards for overexposing a sprue pulloff operator, who works at a different location in the factory closer to the finishing process.

Gunite appealed the citations, contending before the administrative law judge (ALJ) that it should not be liable because it was already implementing a new system designed to alleviate the respirable silica problem and because of the availability of individual respirators, which it contended both alleviated overexposures and qualified as an administrative control. In the prehearing documents made part of the record by the ALJ, the Secretary designated two members of the HRT team — industrial hygienist Keith Motley and mechanical engineer Lee Hathon — as experts. They were expected to testify about their qualifications, their observations of Gunite's foundry, and "administrative and engineering controls to reduce respirable silica" for the locations identified as having overexposures, as well as the contents of the HRT report. Motley's expertise included 12 years of experience as part of the HRT responsible for addressing respirable hazards, while Hathon had served 10 years on the HRT and had participated in investigations "at several foundries and other industries where airborne silica is a hazard." Gunite objected to both Motley's and Hathon's testimony about actual silica levels as "not probative of exposures of the cited employees to the cited levels of respirable silica dust." Nevertheless, Gunite did "not deny that [Motley's and Hathon's] opinions are probative relative to the question of engineering controls for some of the cited work areas," although the company reserved the right to disagree substantively with their opinions "in some respects." At the hearing, the parties stipulated to the admission of the HRT report and agreed that the Secretary would not call the HRT members for direct examination, leaving their testimony in the form of the report itself and other pre-hearing filings made part of the administrative record. The Secretary, however, planned to and did present them for cross-examination.

Both Motley and Hathon were...