General Carbon Co., Div. of St. Mary's Carbon Co. v. Occupational Safety & Health Review Com'n
| Decision Date | 08 November 1988 |
| Docket Number | No. 87-1805,87-1805 |
| Citation | 860 F.2d 479 |
| Parties | , 57 USLW 2359, 19 Envtl. L. Rep. 20,217, 13 O.S.H. Cas.(BNA) 1949, 1988 O.S.H.D. (CCH) P 28,340 GENERAL CARBON COMPANY, a DIVISION OF ST. MARY'S CARBON COMPANY, a Corporation, Petitioner, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION, and Secretary of Labor, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Stella L. Smetanka, with whom David B. White, Pittsburgh, Pa., was on the brief, for petitioner.
Barbara Werthmann, Atty., Dept. of Labor, with whom George R. Salem, Sol., Cynthia L. Attwood, Associate Sol., Ann Rosenthal, Atty., Dept. of Labor, Washington, D.C., were on the brief, for respondents.
John Shortall, Atty., Dept. of Labor, Washington, D.C., also entered an appearance for, Dept. of Labor.
Before WALD, Chief Judge and MIKVA and SENTELLE, Circuit Judges.
Opinion for the Court filed by Chief Judge WALD.
Petitioner General Carbon Company ("General Carbon" or "the company") seeks review of an order of the Occupational Safety and Health Review Commission ("OSHRC" or "the Commission"). That order upheld the Administrative Law Judge's ("ALJ") determination that General Carbon, by its failure to attach a warning label to containers of electrical brushes, had violated one of the Hazard Communication Standards ("HCS") promulgated by the Secretary of Labor. We conclude that OSHRC's action was proper. The petition is accordingly dismissed.
The Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 651 et seq. ("OSHA" or "the Act"), was a congressional response to widespread hazards in the nation's workplaces. The Act's stated purpose is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. Sec. 651(b). Primary responsibility for the implementation of the Act rests with the Secretary of Labor, whose duties include both the promulgation of health and safety standards, see 29 U.S.C. Sec. 655, and the issuance of citations to violators, see 29 U.S.C. Sec. 658. 1 If an employer contests the citation, the OSHRC adjudicates the dispute. See 29 U.S.C. Sec. 659(c). The Commission is an independent tribunal whose members are appointed by the President subject to Senate confirmation, see 29 U.S.C. Sec. 661(a). "The Commission's function is to act as a neutral arbiter and determine whether the Secretary's citations should be enforced"; it "was created to avoid giving the Secretary both prosecutorial and adjudicatory powers." Cuyahoga Valley Railway Company v. United Transportation Union, 474 U.S. 3, 7, 106 S.Ct. 286, 288, 88 L.Ed.2d 2 (1985). Its adjudication is performed in the first instance by an ALJ, see 29 U.S.C. Sec. 661(j); a party adversely affected or aggrieved by the ALJ's decision may seek discretionary review by the Commission. See 29 C.F.R. Sec. 2200.91. If no member of the Commission directs review within thirty days after the docketing of the ALJ's report, the ALJ's decision becomes a final order of the Commission. See 29 C.F.R. Sec. 2200.90(d). Judicial review of the Commission's decision is available, but the Act expressly provides that "[n]o objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." 29 U.S.C. Sec. 660(a).
OSHA itself recognized the importance of providing workers with full information regarding any workplace dangers to which they might be exposed. Section 6(b)(7) of the Act, 29 U.S.C. Sec. 655(b)(7), provides that "[a]ny standard promulgated under this subsection shall prescribe the use of labels or other appropriate forms of warning as are necessary to insure that employees are apprised of all hazards to which they are exposed, relevant symptoms and appropriate emergency treatment, and proper conditions and precautions of safe use or exposure." For several years after the passage of the Act, however, the Secretary failed to promulgate standards requiring the dissemination of relevant information. In 1977, a House committee chided the Department for its failure to promulgate such standards: "The Department of Labor should exercise its power under the Occupational Safety and Health Act to insure that employers and workers can and will know what kinds of toxic dangers are present in the Nation's workplaces." House Committee on Government Operations, Failure to Meet Commitments Made in the Occupational Safety and Health Act, H.R.Rep. 710, 95th Cong., 1st Sess. 15 (1977). In 1983, after a lengthy rulemaking proceeding, the Secretary promulgated the Hazard Communication Standards. See 48 Fed.Reg. 53,280 et seq. (1983).
The HCS require not only that a manufacturer 2 inform its own employees of workplace dangers; the standards also compel manufacturers to furnish information to "downstream" employers and workers, so that employees further along the chain of commerce will be apprised of the hazards they face in working with manufactured products. In promulgating the HCS, the agency envisioned an informational program consisting of three interrelated parts. First, potentially dangerous substances are to be labeled so as to alert downstream employees of possible risks. Second, the manufacturer is to provide downstream employers with a material safety data sheet ("MSDS"); the MSDS contains more detailed information concerning potential hazards and is to be made available to downstream employees. Finally, it is expected that downstream employers, in training their own workers, will more fully explain the hazards to which they may be subjected. 3
The Hazard Communication Standards impose comprehensive disclosure requirements on chemical manufacturers. The standards require that "[t]he chemical manufacturer, importer, or distributor shall ensure that each container of hazardous chemicals leaving the workplace is labeled, tagged or marked with the following information: (i) Identity of the hazardous chemical(s); (ii) Appropriate hazard warnings; and (iii) Name and address of the chemical manufacturer, importer, or other responsible party." 29 C.F.R. Sec. 1910.1200(f)(1). A container is "any bag, barrel, bottle, box, can, cylinder, drum, reaction vessel, storage tank, or the like that contains a hazardous chemical." 29 C.F.R. Sec. 1910.1200(c). A hazardous chemical is "any chemical which is a physical hazard or a health hazard." Id. And a health hazard is defined as "a chemical for which there is statistically significant evidence based on at least one study conducted in accordance with established scientific principles that acute or chronic health effects may occur in exposed employees." Id. The labeling requirements do not apply to "articles," see 29 C.F.R. Sec. 1910.1200(b)(5)(iv); an article is defined as "a manufactured item: (i) Which is formed to a specific shape or design during manufacture; (ii) which has end use function(s) dependent in whole or in part upon its shape or design during end use; and (iii) which does not release, or otherwise result in exposure to, a hazardous chemical under normal conditions of use." 29 C.F.R. Sec. 1910.1200(c). The Secretary has indicated that a product may qualify for the articles exemption if it releases only "a few molecules or a trace amount" of a hazardous chemical. See 52 Fed.Reg. 31,865 (1987).
This case involves electrical brushes manufactured by petitioner General Carbon Company. These brushes, which are made predominantly of copper and graphite, are manufactured at General Carbon's plant in Sandwich, Illinois. They are shipped approximately 650 miles to a Delco Products plant in Rochester, New York, where two Delco employees insert the brushes into brush holders for use in electric windshield wiper motors. During this process, the two Delco employees are exposed to small quantities of copper and graphite dust, both on their hands and in the atmosphere.
Pursuant to an industrial hygiene inspection of the Illinois plant, General Carbon was cited for its failure to affix labels to containers of electrical brushes. 4 The Secretary proposed that the label should identify the chemicals copper and graphite and should include the following warning: Joint Appendix ("J.A.") 42a. That language had been drafted by Mr. John A. Rizzo, an industrial hygienist employed by the agency. Transcript of Proceedings Before ALJ ("Tr.") 43-44.
General Carbon contested the citation. The company conceded that copper and graphite are hazardous chemicals within the meaning of the HCS. J.A. 18a. The company relied primarily on the contention that the HCS labeling requirements should not apply to its brushes since the Delco employees would be exposed to concentrations of copper and graphite far below the Permissible Exposure Limits ("PELs") for these chemicals and thus would face no actual danger. 5 The Secretary did not dispute the company's claim that exposure levels in the Delco plant would be low, nor did the agency present any evidence indicating that Delco employees would actually be at risk. The Secretary's position was that evidence as to exposure levels within the Delco plant was simply irrelevant: the labeling requirement applied to all containers of hazardous chemicals shipped downstream and was in no way contingent on anticipated conditions at a particular downstream site. Mr. Rizzo, in fact, testified that he had never been to the Delco plant and had no way of knowing in what way the brushes would be used. Tr. 50.
The ALJ affirmed the citations and characterized them as other-than-serious. The ALJ accepted the Secretary's argument that "the HCS...
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