Niemand Industries, Inc. v. Reich, No. 94-6854

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore EDMONDSON, DUBINA and BARKETT; PER CURIAM
Citation73 F.3d 1083
Parties17 O.S.H. Cas. (BNA) 1495, 1996 O.S.H.D. (CCH) P 30,970 NIEMAND INDUSTRIES, INC., Petitioner, v. Robert B. REICH, Secretary of Labor, United States Department of Labor, and Occupational Safety and Health Review Commission, Respondents.
Decision Date29 January 1996
Docket NumberNo. 94-6854

Page 1083

73 F.3d 1083
17 O.S.H. Cas. (BNA) 1495, 1996 O.S.H.D. (CCH)
P 30,970
NIEMAND INDUSTRIES, INC., Petitioner,
v.
Robert B. REICH, Secretary of Labor, United States
Department of Labor, and Occupational Safety and
Health Review Commission, Respondents.
No. 94-6854.
United States Court of Appeals,
Eleventh Circuit.
Jan. 29, 1996.

Richard F. Kane and Jay L. Grytdahl, Blakeney & Alexander, Charlotte, North Carolina, for Petitioner.

Barbara A.W. McConnell and Ann Rosenthal, U.S. Dept. of Labor, Office of Solicitor-OSH, Washington, DC, for Respondents.

Petition for Review of an Order of the Occupational Safety and Health Review Commission (Alabama Case).

Before EDMONDSON, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

Petitioner Niemand Industries, Inc., ("Niemand") seeks review of a final decision of the Occupational Safety and Health Review Commission affirming an administrative ruling finding Niemand in violation of 29 C.F.R. Sec. 1910.1000(c) for exposing its employees to excessive levels of talc. Because there is no substantial record evidence to support the finding of a violation, we reverse the Commission's decision.

Niemand operates a manufacturing plant in Marion, Alabama where it produces containers and other products for shipment in interstate commerce. Following a complaint

Page 1084

that Niemand's employees were being exposed to excessive levels of talc, 1 the Occupational Safety and Health Administration ("OSHA") 2 sent an industrial hygienist to inspect Niemand's facility. As a result of the inspection, Niemand was charged with violating 29 C.F.R. Sec. 1910.1000.

29 C.F.R. Sec. 1910.1000 provides, in part:

C.F.R. Sec. 1910.1000 Air Contaminants

An employee's exposure to any substance listed in Tables Z-1, Z-2 or Z-3 of this section shall be limited in accordance with the requirements of the following paragraphs of this section.

....

(c) Table Z-3. An employee's exposure to any substance listed in Table Z-3, in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average limit given for that substance in the table.

Table Z-3 limits permissible exposure to respiratory talc dust to 20 million particles per cubic foot of air ("mppcf") based on an eight-hour time weighted average.

The threshold question in this case is whether the Secretary's evidence supports a conclusion that an employee engaged in Niemand's talc operation was exposed to talc in excess of the permissible exposure...

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3 practice notes
  • J.A.M. Builders Inc. v. Herman, No. 99-11917
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 22, 2000
    ...by substantial evidence on the record as a whole; if so, they are deemed conclusive. See 29 U.S.C. 660(a); Niemand Indus., Inc. v. Reich, 73 F.3d 1083, 1084 (11th Cir. 1996). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accep......
  • J.a.M. Builders v Herman, 11
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 7, 2000
    ...by substantial evidence on the record as a whole; if so, they are deemed conclusive. See 29 U.S.C. 660(a); Niemand Indus., Inc. v. Reich, 73 F.3d 1083, 1084 (11th Cir.1996). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept......
  • Film Allman, LLC v. Sec'y Labor, No. 15-15720
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 20, 2017
    ...the Commission's finding that a violation was "willful"); see 29 U.S.C. § 660(a); see also Niemand Indus., Inc. v. Reich, 73 F.3d 1083, 1084 (11th Cir. 1996). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as a......
3 cases
  • J.A.M. Builders Inc. v. Herman, No. 99-11917
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 22, 2000
    ...by substantial evidence on the record as a whole; if so, they are deemed conclusive. See 29 U.S.C. 660(a); Niemand Indus., Inc. v. Reich, 73 F.3d 1083, 1084 (11th Cir. 1996). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accep......
  • J.a.M. Builders v Herman, 11
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 7, 2000
    ...by substantial evidence on the record as a whole; if so, they are deemed conclusive. See 29 U.S.C. 660(a); Niemand Indus., Inc. v. Reich, 73 F.3d 1083, 1084 (11th Cir.1996). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept......
  • Film Allman, LLC v. Sec'y Labor, No. 15-15720
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 20, 2017
    ...the Commission's finding that a violation was "willful"); see 29 U.S.C. § 660(a); see also Niemand Indus., Inc. v. Reich, 73 F.3d 1083, 1084 (11th Cir. 1996). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as a......

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