Usery v. Hermitage Concrete Pipe Co.

• Decision Date: 31 August 1978
• Docket Number: No. 76-1316,76-1316
• Citation: 584 F.2d 127
• Parties: , 6 O.S.H. Cas.(BNA) 1886, 1978 O.S.H.D. (CCH) P 22,983 W. J. USERY, Jr., Secretary of Labor, Petitioner, v. HERMITAGE CONCRETE PIPE COMPANY and Occupational Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 127

584 F.2d 127

45 A.L.R.Fed. 774, 6 O.S.H. Cas.(BNA) 1886,

1978 O.S.H.D. (CCH) P 22,983

W. J. USERY, Jr., Secretary of Labor, Petitioner, v. HERMITAGE CONCRETE PIPE COMPANY and Occupational Safety and Health Review Commission, Respondents.

No. 76-1316.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 13, 1978.

Decided Aug. 31, 1978.

Dennis K. Kade, Michael H. Levin, Allen H. Feldman, U. S. Dept. of Labor, Washington, D. C., for petitioner.

Gen. Counsel, O. S. H. R. C., Washington, D. C., R. Robert Kassem, Kassem, Cain & Monlier, Knoxville, Tenn., Government Appeal, for respondents.

Allen H. Sachsel, Appellate Sect., Civil Div., Dept. of Justice, Washington, D. C., for respondent OSHRC.

Before WEICK, EDWARDS and ENGEL, Circuit Judges.

ENGEL, Circuit Judge.

The Secretary of Labor petitions for review of an order of the Occupational Safety and Health Review Commission which declined to enforce a citation issued by the Secretary to the Hermitage Concrete Pipe Company for a serious violation of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 651 Et seq. We hold that the Commission employed an improper standard in determining whether a given violation of the Act is "serious" as that term is defined in Section 17(k) of the Act, 29 U.S.C. § 666(j), and accordingly remand the case to the Commission.

The respondent Hermitage Concrete Pipe Company engages in the manufacture of cement piping and conduits at its plant in Knoxville, Tennessee. Involved in this petition are two aspects of the manufacturing process: the "batching" phase of manufacture involving the mixture of the necessary ingredients for the piping and conduits, and the "finishing" phase, consisting primarily of chipping, grinding and blowing with compressed air to remove certain silica-based imperfections from the castings.

During a routine inspection on June 13 and 14, 1973, OSHA Industrial Hygienist Donald Roberts took preliminary dust samples in an effort to determine whether the operations in question were exposing the employees of Hermitage to impermissible levels of free silica. Roberts thereafter returned to Hermitage on August 1, 1973 with approved air sampling equipment and obtained a series of respirable dust samples for certain employees in the conduit batching and finishing areas, none of whom was observed wearing a respirator while working. Analysis of the samples so obtained revealed that in the finishing operation, and to a slight degree in the batching operation, dust exposure exceeded those limits specified in 29 C.F.R. § 1910.93(c), now recodified at 29 C.F.R. § 1910.1000(c). Shortly thereafter a citation was issued against Hermitage charging, among other things, ¹ that it had been guilty of a serious violation of the Act in failing to protect its employees from silica exposure. The citation imposed a penalty of $650 and ordered abatement of the condition. The company contested the citation.

In proceedings before an Administrative Law Judge of the Commission, dust contamination revealed by the samples was found to exceed the level permitted by OSHA regulation. ² Nevertheless, he ruled that the Secretary had failed to prove a serious violation because, he found, the company neither knew, nor with the exercise of due diligence could have known, that the silica content of the air "created a condition likely to cause death or serious physical harm." See 29 U.S.C. § 666(j). The Secretary of Labor subsequently sought review before the Commission of the decision of the Administrative Law Judge. The Commission agreed that the conditions at the Hermitage plant violated OSHA regulations. Without addressing the "due diligence" ruling of the Administrative Law Judge, a majority of the Commission concluded that in any event, the Secretary's proofs were insufficient to establish that the air posed a sufficiently grave threat to the employees' health:

On review, Respondent does not contest Judge Larkins' findings that its employees were exposed to excessive silica dust. Accordingly, Respondent violated 29 C.F.R. 1910.93(c) (presently codified at 29 C.F.R. § 1910.1000(c)). The question that remains is whether the violation was serious. On this question Complainant has the burden of establishing that the levels of silica dust in Respondent's workplace would result in serious physical harm or death.

Continuing, Chairman Barnako observed for a majority of the Commission:

Complainant relies primarily on certain scientific articles and treatises which deal generally with the subject of silica dust. They show that excessive exposure to large concentrations of silica dust can produce serious physical harm, but whether serious harm does result depends on the duration of exposure, among other things. The documents do not show the specific durations that produce serious harm when the exposure is to particular levels of silica dust. Thus we cannot determine from the publications, or for that matter, from any other record evidence, how long a person can be exposed to a certain quantity of silica dust before serious bodily harm would result. Accordingly, it is impossible to determine if Respondent's employees would be seriously harmed by the silica dust levels found in Respondent's workplace. Moreover, even if we knew the specific time spans, there is no evidence that shows how long Respondent's employees were exposed to the dust levels.

The publications also show that the extent of physical harm depends on the size, form and type of silica dust, that is, on the percentage of the dust that is respirable fine crystalline quartz. Nonetheless, there is no evidence showing what percentage of the silica dust in Respondent's workplace was respirable fine crystalline quartz.

Additionally, Complainant did not show that Respondent's employees have already suffered severe bodily harm, or that they are showing symptoms of any type of physical impairment that later leads to serious harm. In fact, aside from the publications, Complainant's only evidence on the question of serious harm was the opinion of the compliance officer that Respondent's employees were exposed to dangerous levels of silica dust. In view of the scientific publications which show that the duration of exposure and the kind of dust, as well as the levels, determine whether serious bodily harm can result, we find the compliance officer's opinion insufficient to support a finding of a serious violation. Accordingly, we must affirm the violation as nonserious. (Footnote omitted.)

The Commission was, however, in disagreement over the sufficiency of the Secretary's proof. In particular, Commissioner Cleary, while concurring with the propriety of the fine which the Commission imposed as a penalty for the violation, dissented from the majority's evaluation of the evidence:

Respondent did not dispute the fact that excessive exposure to silica dust can be injurious to health. Indeed, at the hearing respondent asked Judge Larkin to take official notice that "silica dust is serious and dangerous to one's health." Also the concentration of silica dust exceeded the permissible 8-hour time weighted average limits of the standards. The limits of the standards are those initially adopted under the Walsh-Healey Act to regulate conditions "hazardous or dangerous to the health and safety of employees engaged in the performance of" government supply contracts. 29 CFR § 1910.99 (36 F.R. 10523, May 29, 1971); 41 CFR 50-204.1. Further, scientific articles and treatises offered by the Secretary of Labor in this case clearly establish that death or serious physical harm can result if a person contracts a silica related disease.

From the foregoing I would hold that the Secretary of Labor has carried his burden of proof (1) that there was a danger of a silica related disease because of the nature and extent of exposure to employees to silica dust; and (2) that if a silica-related disease were contracted there was a danger of physical serious harm or death. (Citations omitted.)

At the outset the parties disagree in their basic analysis of the dispute with the Commission's order. The Secretary urges that the Commission applied an erroneous test in judging whether the company's violation was serious within the meaning of the Act. The Commission and Hermitage, on the other hand, urge that the Commission's decision is insulated on review by the "substantial evidence" test of 29 U.S.C. § 660(a):

The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.

In short, the parties are in disagreement over whether in our review we are faced with a factual issue, calling for application of the substantial evidence test, or a legal issue centering on the Commission's interpretation of Section 666(j)'s definition of a serious violation. We conclude that this petition clearly presents a question of statutory interpretation and that the substantial evidence test is inapposite. See Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340, 1343-44 (2d Cir. 1974).

Section 666(j) provides:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

We agree that the Commission employed a more restrictive standard for a serious violation than that which is called for by the Act. The Commission appears to have ignored the standard that there be "a substantial probability that death or serious physical harm Could result from a condition which exists." Instead, a majority of the Commission, by...