Niemand Industries, Inc. v. Reich
| Decision Date | 29 January 1996 |
| Docket Number | No. 94-6854,94-6854 |
| Citation | 73 F.3d 1083 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
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.
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 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 limit ("PEL"), the maximum amount of an air contaminant to which an employee may be exposed over a specified period of time. Table Z-3 expresses the permissible exposure level to talc in terms of "millions of particles per cubic foot of air" to be measured "based on impinger samples counted by light-field techniques," and sets the limit at 20 mppcf. Instead of using this method of analysis, Valentin Ille, Jr., the OSHA industrial hygienist who analyzed the levels of talc at Niemand's facility, used a gravimetric air sampling test in which the sample collected is weighed and the exposure level calculated by weight in units of "milligrams of substance per cubic meters of air" (mg/m 3). Niemand contends that because measuring talc in mg/m 3 does not comport with the method prescribed in Table Z-3 for determining an overexposure to talc, such measurements may not form the basis of the alleged violation.
In his testimony, Ille explained that the light-field technique was growing obsolete and that the OSHA manuals in his office recommended the gravimetric method. Because use of the gravimetric method would render a result in units different from those provided in Table Z-3, Ille telephoned OSHA's Utah laboratory to confirm the maximum PEL. An unidentified chemist instructed...
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...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 as ......
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