Noblecraft Industries, Inc. v. Secretary of Labor

• Decision Date: 03 January 1980
• Docket Number: 77-1436,76-3714,77-1445 and 77-1611,76-1306,Nos. 76-1106,76-1281,s. 76-1106
• Citation: 614 F.2d 199
• Parties: 7 O.S.H. Cas.(BNA) 2059, 1979 O.S.H.D. (CCH) P 24,135 NOBLECRAFT INDUSTRIES, INC., Boise Cascade Corporation, Continental Kitchens, Inc., Diamond International Corporation, Louisiana-Pacific Corporation, Konkolville Lumber Company, Weyerhaeuser Company, Petitioners, v. SECRETARY OF LABOR and Occupational and Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 199

614 F.2d 199

7 O.S.H. Cas.(BNA) 2059, 1979 O.S.H.D. (CCH) P 24,135

NOBLECRAFT INDUSTRIES, INC., Boise Cascade Corporation Continental Kitchens, Inc., Diamond International Corporation, Louisiana-Pacific Corporation, Konkolville Lumber Company, Weyerhaeuser Company, Petitioners, v. SECRETARY OF LABOR and Occupational and Safety and Health Review Commission, Respondents.

Nos. 76-1106, 76-1281, 76-1306, 76-3714, 77-1436, 77-1445

and 77-1611.

United States Court of Appeals Ninth Circuit.

Jan. 3, 1980.

Rehearing Denied March 10, 1980.

George Tichy, Spokane, Wash., Douglas B. M. Ehlke, Federal Way, Wash., Carolyn J. Purnell, Tacoma, Wash., for petitioners.

Dennis K. Kade, Atty. Dept. of Labor, Washington, D. C., for respondents.

On Petition to Review and Set Aside Certain Orders of the Occupational Safety and Health Review Commission.

Before MERRILL and GOODWIN, Circuit Judges, and SCHNACKE, ^* district judge.

MERRILL, Circuit Judge:

Petitioners are Pacific Northwest employers engaged in the processing of lumber and the manufacture of wood products. Each was the subject of an enforcement inspection by the Occupational Safety and Health Administration (OSHA), and was cited for various violations of safety standards. Each contested the citations and in each case the citations (with the exception of certain of the citations for noise level violations) were upheld by order of the Occupational Safety and Health Review Commission (OSHRC). Under the Occupational Safety and Health Act (the Act), 29 U.S.C. § 660(a), each petitioner now seeks review by this court of the Commission order affecting it to the end that that order be set aside. The petitions for review have been consolidated in this proceeding.

Radial Saw Violations

Many of the citations issued by OSHA had to do with the manner in which petitioners utilized industrial size radial arm saws in their manufacturing and processing operations. OSHA contends that the manner of operation in each case is contrary to the safety standards established by the OSHA regulation contained in 29 C.F.R. § 1910.213(h)(1). ¹ That standard reads in part as follows:

"The sides of the lower exposed portion of the blade shall be guarded to the full diameter of the blade by a device that will automatically adjust itself to the thickness of the stock and remain in contact with stock being cut to give maximum protection possible for the operation being performed."

The citations were for failure to provide such a device. Throughout these proceedings petitioners have contended that such a device is unsafe and unfeasible.

Petitioners offer two challenges to the regulation. First, they contend that the standard from which the regulation was drawn was not a valid "national consensus standard" as required by the statute. Second, they contend that even if the source standard was a valid consensus standard, the Secretary destroyed the consensus by omitting certain portions of the standard in adopting 29 C.F.R. § 1910.213(h).

OSHA contends that review of the validity of (h)(1) is time barred by the Act. Section 6(f) of the Act, 29 U.S.C. § 655(f), provides in part:

"Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard."

Legislative history indicates, however, that this limitation was intended to apply only to pre-enforcement review of the standards and that if review of an enforcement order is timely sought under § 660(a), the validity of the standard can be challenged in those proceedings. The Senate Report states:

"While (Section 655(f)) would be the exclusive method for obtaining pre-enforcement judicial review of a standard, the provision does not foreclose an employer from challenging the validity of a standard during an enforcement proceeding."

S.Rep.No.91-1282, 91st Cong., 2d Sess., Reprinted in (1970) U.S.Code Cong. & Admin.News pp. 5177, 5184. The Conference Report merely states that "a 60-day limitation on the appeal time (was) accepted by the conferees." Conf.Rep.No.91-1765, 91st Cong., 2d Sess., Reprinted in (1970) U.S.Code Cong. & Admin.News, pp. 5228, 5232.

Accordingly, we hold that the limitation provided by § 655(f) applies to pre-enforcement review only, and that the validity of the standard can be challenged in this review of the enforcement order under § 660(a). We read Atlantic & Gulf Stevedores v. OSHRC, 534 F.2d 541 (3d Cir. 1976), as holding to this effect.

Petitioners first challenge the regulation as not adopted pursuant to statutory authority. The Secretary did not comply with the notice and hearing provisions of the Administrative Procedure Act in adopting the regulation. However, 29 U.S.C. § 655(a) authorizes the Secretary "as soon as practicable" to promulgate any "national consensus standard" as an occupational safety or health standard "without regard to chapter 5 of Title 5." OSHA contends that the standard here in question qualifies as a national consensus standard. That term is defined in § 3(9) of the Act, 29 U.S.C. § 652(9), as follows:

"The term 'national consensus standard' means any occupational safety and health standard or modification thereof which (1) has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies."

The regulation, 1910.213(h)(1), is taken from standards adopted by the American National Standards Institute (ANSI). Legislative history indicates that Congress was satisfied that the procedures customarily followed by ANSI were such that ANSI standards would meet the statutory definition of national consensus standards. The Senate Report states:

"Two private organizations are the major sources of consensus standards: the American National Standards Institute, Inc., and the National Fire Protection Association. Since, by the Act's definition, a 'consensus standard' is one which has been adopted under procedures which have given diverse views an opportunity to be considered and which indicate that interested and affected persons have reached substantial agreement on its adoption, it is appropriate to permit the Secretary to promulgate such standards without regard to the provisions of the Administrative Procedure Act."

S.Rep.No.91-1282, 91st Cong., 2d Sess., Reprinted in (1970) U.S.Code Cong. & Admin.News, pp. 5177, 5182. Senator Javitts, a leading proponent of the Act, agreed that "a national consensus standard, under this Act, is a standard which has been developed by one of two organizations at the present time: the American National Standards Institute or the Fire Underwriters Association." Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 91st Cong., 2d Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 504 (1970).

For several reasons petitioners contend that the challenged standard, 1910.213(h)(1), was not properly adopted as a consensus standard pursuant to § 652(9). Petitioners argue that the requirements of § 652(9) were not met because the sawmill and plywood industries were not represented on the ANSI committee which formulated the standard. ² However, the National Lumber Manufacturers Association was represented on the committee, as was the National Safety Council, of which appellant Weyerhaeuser was a member. Petitioners further argue that the ANSI standards were not valid consensus standards because the individual employers who composed the ANSI member organizations were not consulted or required to reach consensus with regard to the standards. Congress, however, was aware of ANSI's procedures, and approved the adoption of ANSI standards as national consensus standards.

Petitioners also contend that the ANSI source standard was intended only as a guide and that no consensus can be said to have been reached to the effect that the standards should be literally enforced in all cases. ANSI standards generally are stated to be guides, however, and this fact did not discourage congressional approval of the ANSI procedures. ³ The same can be said of petitioners' complaint that the Secretary adopted the ANSI standards here involved as meeting the requirements of consensus standards without conducting his own investigation as to whether the statutory definition had been met.

The resort by Congress to consensus standards was to meet the pressing need for adoption of OSHA standards on an exceedingly broad industrial front without undue delay. The procedures by which consensus standards were formulated were felt to provide sufficient assurance as to industry-wide consensus to justify exempting such standards from the requirements of the APA. Protection against misguided or inappropriate application of a particular standard is afforded by the Act's provisions for modification of standards under 29 U.S.C. § 655(b), should experience indicate that safety could better be achieved by other means, and for variances under 29 U.S.C. § 655(d), where the circumstances surrounding the particular use indicate that other practices will sufficiently achieve safety. In this case no petitioner sought modification or variance as to any of the charged violations.

Petitioners contend that Congress improperly delegated legislative and administrative power to a private organization, ANSI. We do not find an undue...