BOISE CASCADE CORPORATION

OSHRC Docket No. 2944

Occupational Safety and Health Review Commission

December 11, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Altero D'Agostini, Regional Solicitor, USDOL

George Nummy, Manager, Corporate Safety Department, Boise Cascade Corporation, for the employer

Gene N. Hain, Secy-Treas., Assn. of Western Pulp and Paper Workers, for the employees

OPINION:

DECISION

BY THE COMMISSION:

The decision of Judge Harold A. Kennedy is before this Commission by the separate orders of Commissioners Cleary and Moran issued pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.). n1

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n1 The orders invited the submission of briefs on the following issues:

(1) Was 29 C.F.R. 1910.213(h)(1) validly promulgated pursuant to 29 U.S.C. 655(a).

(2) Does 29 C.F.R. 1910.213(h)(1) meet the requirements of a national consensus standard within the meaning of 29 U.S.C. 652(9).

(3) Whether the Judge had authority to consider and rule on the propriety of the promulgation of the cited standard; and if so, whether the standard was duly promulgated.

(4) Whether the Judge properly exercised his authority pursuant to section 17(j) of the Act in assessing a penalty of $600.

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Judge Kennedy affirmed a citation issued for an alleged serious violation of section 5(a)(2) of the Act for respondent's non-compliance with the safety standard at 29 CFR 1910.213(h)(1) which requires the guarding of radial saws. The Judge assessed the $600 penalty proposed by the Secretary.

Respondent argued that this standard is invalid for several reasons. The Secretary adopted as a national consensus standard n2 an American National Standard Institute (ANSI) standard on woodworking. As originally adopted by ANSI, the standard had a headnote that conceded that the standards for saw guards lacked perfection and that there are some cases that are not satisfactorily met by the standards. n3 Respondent urges that in adopting 29 CFR 1910.213(h)(1) the Secretary gave general application to the ANSI standard, including application to the pulp and paper manufacturing industry, even though representatives of the industry did not participate in the formulation of the ANSI standard. The Secretary also deleted the headnote to the ANSI standard without an opportunity for public comment. Thus, respondent [*3] argues, 29 CFR 1910.213(h)(1) was not validly adopted by the Secretary because it is not a national consensus standard.

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n2 The term "national consensus standard" is defined in section 3(9).

n3 The headnote reads as follows:

NOTE: It is recognized that the standards for saw guards in 4.1 are not perfectly applicable to all operations for which saws are used. The standards given are those which woodworkers have agreed are most generally useful. Since there are a considerable number of cases not satisfactorily met by these standards, the enforcing authority should exercise rather wide latitude in allowing the use of other devices which give promise of affording adequate protection. It may be expected that by so doing further progress in saw guarding will be encouraged.

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In Noblecraft Industries, Inc., No. 3367 (Nov. 21, 1975), the Commission carefully considered these points. For the reasons stated therein, the Commission majority rejects respondent's arguments.

Respondent also argues that the standard is [*4] invalid because compliance therewith would not increase, but would decrease, employee safety. The claim is unsupported by the record and is therefore rejected. Commissioner Cleary would also conclude that the Commission lacks the power to declare a standard unenforceable on this ground. General Electric Co., No. 2739 (April 21, 1975). Joseph Bucheit & Sons Co., No. 295 (July 31, 1972) (Administrative Law Judge).

Commissioner Cleary also concurs in Judge Kennedy's holding that the Review Commission lacks the broad power to review the Secretary's promulgation of occupational safety and health standards, and to declare standards invalid. The Commissioner's views on the question are expressed fully in United States Steel Corp., Nos. 2975 & 4349 (November 14, 1974) (concurring opinion). Conversely, Commissioner Moran would disagree with Judge Kennedy's holding for the reasons stated in his dissenting opinion in United States Steel Corp., supra. Chairman Barnako does not reach the question in view of the Commission's decision in Noblecraft.

The parties agreed that if the standard were found valid, then the citation for serious violation and the penalty of [*5] $600 proposed by the Secretary should be affirmed.

Judge Kennedy properly examined the appropriateness of the proposed penalty. Thorlief Larsen & Son, Inc., No. 370 (October 11, 1974). His decision to accept the proposed stipulated penalty is affirmed. The amount proposed was not objected to by any party. Moreover, the appropriateness of the stipulated penalty is supported by the record. The gravity of the violation was high. The hands and bodies of the operators regularly came within four the twelve inches of the saw blade which had the capacity to rotate at 3600 RPM. Exposure to the violative conditions was continous during the work day. There is no evidence of alternate forms of protection being provided and respondent had actual knowledge of the violative conditions. Given these facts the Judge's disposition of the penalty part of this case is consonant with Thorlief Larsen & Son, Inc., supra and Shaffer Constr. & Engineering Co., No. 675 (December 24, 1974).

Accordingly,it is ORDERED that the Judge's order affirming the citation for serious violation No. 1 is affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The sole issue before Judge Kennedy in this [*6] case was whether the Secretary of Labor adhered to the requirements of 29 U.S.C. 655(a) permitting him to promulgate "any national consensus standard" as an occupational safety and health standard when he adopted part of a standard of the American National Standards Institute: ANSI 01.1-1954 (R 1961).

In his decision, which is attached hereto as Appendix A, the Judge states that he allowed admission of evidence on this issue. Nevertheless, he refused to decide the case thereon due primarily to his belief that this Commission has no authority to consider whether or not the Secretary of Labor properly promulgated a standard. He relied, for this ruling, upon 29 U.S.C. 655(f) which provides:

"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 a judicial review . . . ."

This section merely establishes a forum and a period of time during which any affected person can challenge in advance the validity of a standard, regardless of whether or not any enforcement proceeding [*7] has been commenced thereunder. It is not the only way to challenge a standard's validity. It can be done during an enforcement proceeding like the one involved in this case or on denial of a proper variance petition (see 29 U.S.C. 655(d)). The Congress specifically contemplated such a scheme during the legislative process leading to enactment of this statute, a matter I discussed at some length in the Order of Remand in Secretary v. United States Steel, cited supra.

29 U.S.C. 651(b)(3) provides that this Commission was created "for carrying out adjudicatory functions under the Act." Included under such responsibility is the determination of the validity of standards and regulations promulgated under the Act. Secretary v. Oberhelman-Ritter Foundry, Inc., 3 OSAHRC 1212 (1973). As Judge Will stated in Elgin, Joliet and Eastern Railroad v. Benjamin Harris & Co., 245 F. Supp. 467, 472 (N.D. Ill. 1965):

"The refusal to apply the agency ruling upon finding that the bounds laid down by Congress have been traversed is not based on evidentiary insufficiency or disagreement with expert judgment, but is an exercise of judicial authority to preserve the legislative scheme." [*8] Quoted with approval in Board of Public Instruction v. Finch, 414 F.2d 1068, 1074-1075 (5th Cir., 1969).

Judge Kennedy, therefore, should have resolved this case on the merits of the issue raised: whether the Secretary of Labor complied with the statutory requirements in adopting ANSI 01.1-1954 (R 1961) as an occupational safety and health standard. The Commission has addressed itself to this issue and is, with this opinion, handing down an affirmative ruling thereon. I agree that this is a proper issue for us to resolve but I disagree with the affirmative ruling. I do not think the Secretary of Labor observed the requirements of 655(a) in promulgating this standard because he deleted some of its wording and modified some of its meaning when he did so.

APPENDIX A

DECISION AND ORDER

BOISE CASCADE CORPORATION, a corporation

Sandra K. Rogers, for the Secretary

Judith H. Soderblum, for the respondent

Mr. Gene N. Hain, Secretary-Treasurer of Association of Western Pulp and [*9] Paper Workers

Harold A. Kennedy, Judge, OSAHRC:

STATEMENT OF THE CASE

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.) initiated by a notice of contest filed by the Respondent Employer. Respondent contests a "serious" n1 citation and a notice of a proposed penalty therefor, issued by the Complainant Secretary under authority of Sections 9(a) and 10(a) of the Act. The contested citation, designated Citation for Serious Violation No. 1, n2 alleges that an inspection of Respondent's workplace on Kaster Road, St. Helens, Oregon, disclosed that Respondent violated the Act by failing to comply with the occupational safety and health standard appearing at 29 CFR 1910.213(h)(1). n3 The citation described the violation as follows:

The 16" DeWalt Radial Saw in the Carpenter Shop is in service and the lower half of the blade is unguarded.

The cited standard reads:

(h) Radial saws. (1) The upper hood shall completely enclose the upper portion of the blade down to a point that will include the end of the saw arbor. The upper hood shall be constructed in such a manner and of such material that it will [*10] protect the operator from flying splinters, broken saw teeth, etc., and will deflect sawdust away from the operator. 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:

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n1 Section 17(k) of the Act provides that "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."

n2 The Secretary issued three citations against this Respondent on April 19, 1973. Two charged "serious" violations, and one alleged 20 non-serious violations or Items.

n3 Section 5(a)(2) of the Act provides that each covered employer "shall comply with occupational safety and health standards promulgated under this Act."

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The Secretary prescribed correction of the alleged violation by May 21, 1973, but the abatement date is not in issue in this proceeding.

After complaint and answer were filed, Counsel for the Secretary and Counsel for the Respondent submitted a stipulation of facts (actually set forth in two documents and filed on two different dates) and three volumes of testimony taken before another Review Commission judge as the basis of the decision in this matter. A copy of the stipulation and the testimony were served upon Mr. Gene Hain, Secretary-Treasurer of Association of Western Pulp and Paper Workers, the Employees' Representative. Upon review, Mr. Hain reported under date of November 6, 1973, that he was agreeable to the stipulation but expressed the "Association's position that the standards as published in the Federal Register must be considered as valid . . ."

The parties, including the Employees' Representative, were given an opportunity to file proposed findings and briefs. Proposed findings were filed by Respondent. Respondent and the Secretary have filed opening as well as reply briefs. n4

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n4 Respondent's reply brief was filed after the Secretary's reply brief. Respondent requested leave to file such brief, and no objection was filed thereto.

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FINDINGS OF FACT

A. Pleadings and Stipulations

The pleadings establish that Respondent is a corporation engaged in the manufacture of pulp and paper, that it has a place of business at 1 Jefferson Square in Boise, Idaho, and that it has a worksite and place of employment on Kaster Road, St. Helena, Oregon. The pleadings also establish that Respondent is an employer engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970. The answer admits that Respondent's employees produce, handle or work on substantial quantities of pulp and paper sold or shipped outside of the State of Oregon.

The Secretary and Respondent submitted a stipulation as to the following:

1. On March 22, 1973, an inspection of the respondent's workplace at Kaster Road, St. Helena, Oregon was made by an authorized compliance [*13] officer of the Occupational Safety and Health Administration.

2. At the time of the above described inspection, a 16" DeWalt Radial Arm Saw located in the carpentry shop at the above location did not have a guard on the lower portion of the blade.

3. The respondent had knowledge of the fact that the above described saw was unguarded on the lower portion of its blade in that Mr. Michael Lewis, Plant Safety Director knew of the existance (sic) of this condition.

4. The standard which is applicable to the condition of the saw described above is found at 29 CFR 1910.213(h)(1) which requires that;

"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."

5. The saw in question was used by one or more of the respondent's employees in the normal course and scope of their duties for carpentry work.

6. The saw in question was used daily by the respondent's employees.

7. The saw in question when in operation reaches speeds of 3600 RPM and the [*14] hand and body of the workman comes within 4" to 12" proximity to the saw.

8. On April 19, 1973, as a result of the inspection referred to in paragraph 1 above, respondent was issued Citation for Serious Violation Number 1.

9. An initial determination of the gravity of the violation, based on the facts as stipulated to above, was made by the compliance officer, and that based thereon, an unadjusted penalty of $1,000 was recommended.

10. Adjustments to the penalty were recommended in the following amounts: 20% for good faith; 20% for history and 0% for size.

11. The recommendation that an adjustment of 20% be made because of the respondent's good faith was based upon the fact that the firm was aware of the problems and was amendable to taking immediate action to correct them.

12. The recommendation of an adjustment in the amount of 20% for history was based on the fact that the compliance officer could find no record of prior violations of the Act by the respondent.

13. The recommendation of an adjustment of 0% for size was based on the fact that respondent employed more than 100 employees.

14. The above described penalty computations were all in [*15] accordance with the procedures required by the OSHA Compliance Manual.

15. Based on the above described facts, should the court rule that the standard now found at 29 CFR 1910.213(h)(1) be upheld as validly promulgated, the parties hereby stipulate and agree that an order may be entered finding the respondent to have violated 29 CFR 1910.213(h)(1), that the violation was of a serious nature and that the proposed penalty of $600.00 was reasonable.

16. The abatement date of May 21, 1973 was reasonable insofaras (sic) it was agreed to be the Plant Safety Director, Michael Lewis, as being the shortest time within which a guard could be obtained for the saw in question.

It is further stipulated and agreed between the parties hereto that any record made of the hearing held of OSHARC Judge Garl Watkins on August 27, 1973 relating to the validity of the promulgation of the standard now found at 29 CFR 1910.213(h)(1) may be considered as a part of the record herein, preserving any and all objections which the Secretary may have either to the relevency (sic) of the hearing, the authority for said hearing, or the authority to rule on the issues therein, and/or to the testimony, documentary [*16] evidence or other facts or evidence adduced or presented therein, whether asserted at said hearing or subsequently asserted in this matter.

The undersigned judge took the position that the last paragraph of the above made the stipulation unsatisfactory because it did not sufficiently identify what the record in the case would be. Thereafter, the Secretary and Respondent submitted an additional stipulation, which included three volumes of testimony taken before Judge Garl Watkins on August 29, 30 and 31 in Seattle, Washington. n5 The additional stipulation reads:

The record in the instant case shall consist of the following:

1. Citation for Serious Violation dated April 19, 1973.

2. Notice of Proposed Penalties dated April 19, 1973.

3. Respondent's notice of contest by letter dated May 8, 1973.

4. The complaint.

5. Respondent's answer to the complaint.

6. Notice of Hearing dated July 18, 1973.

7. Amended Notice of Hearing dated August 31, 1973.

8. The 4 page Stipulation signed by counsel for complainant and counsel for respondent, mailed to Judge Kennedy on September 24, 1973.

9. Notice of Postponement of Hearing and Other Matters dated October 1, 1973.

10. Any [*17] and all additional procedural exhibits of either the Occupational Safety and Health Review Commission or Judge Kennedy.

11. The transcript, a copy of which is attached hereto, of that portion of the hearing held by Judge Garl Watkins commencing on August 29, 1973 concerning the validity of certain standards found in 29 CFR 1910.213 and the legality of the acts of the Secretary of Labor in adopting them. Said transcript, as it reflects the oral testimony presented at said hearing, including any discussions, descriptions and comments on any exhibits presented therein, to be considered a part of the record in this case preserving any and all objections which the Secretary may have either to the relevancy of said hearing, the authority for said hearing or the authority to rule on the issues therein, and/or to the testimony, documentary evidence or other facts or evidence adduced or presented therein whether asserted at said hearing or subsequently asserted in this matter.

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n5 As indicated, supra, copies of the stipulations, including the transcript of testimony, were served upon Employees' Representative.

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B. The Transcript

The stipulated transcript reports the testimony and arguments made at a consolidated hearing (involving 10 cases and 8 different Respondent employers) before Judge Garl Watkins on August 29, 30 and 31, 1973. The announced purpose of the hearing was for (Tr. S 8):

. . . receiving evidence and hearing arguments on the question of the validity of certain standards found in 29 CFR 1910.213, and the legality of the acts of the Secretary of Labor in adopting them.

While agreeing that the transcript may be considered a part of the record in this case, the Secretary maintains that it is wholly irrelevant. The Respondent, on the other hand, relies on the transcript as the hearing concerned an issue "identical to the major issue in the present contest" (Resp's Br., p 4). The stipulated transcript will, in any event, be relevant on any review of this matter, and such transcript is, therefore, made a part of the record herein.

According to the stipulated transcript, the standard in question, 29 CFR 1910.213(h)(1), had its origin in ANSI 01 woodworking standard n6 as adopted in 1954 [*19] and reaffirmed in 1961. n7 The ANSI standard as published in 1954 and 1961 carried a Headnote. The record indicates that the Headnote read (Tr. S 12):

Note: It is recognized that the standards for saw guards in 4.1 are not perfect and applicable to all operations for which saws are used. The standards given are those which woodworkers have agreed are most generally useful. Since there are a considerable number of cases not satisfactorily met by these standards, the enforcing authorities should exercise rather wide latitude in allowing the use of other devices which give a promise of affording adequate protection. They may be expected by so doing, further progress in saw guarding will be encouraged. n8

The ANSI 01 woodworking standard was adopted and published as an Occupational Safety and Health (OSHA) standard on May 29, 1971, but without such headnote.

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n6 ANSI is an abbreviation for the American National Standards Institute, previously known as the United States of America Standards Institute, American Standards Association, and American Engineering Standards Committee (Tr. S 129).

n7 The Federal Register in publishing the standard (subpart 0) on May 29, 1971 and October 18, 1972 also indicated such source (29 CFR 1910.221-222).

n8 Respondent states in its brief that the Headnote actually read (Resp's Br., p 4): "NOTE: It is recognized that the standards for saw guards in this section are not universally applicable to all operations for which saws are used. The standards given are those which are generally accepted in the industry. Since there are a number of situations not satisfactorily covered by these standards, the enforcing authority should exercise latitutde in allowing the use of other devices which afford adequate protection." The documents received at the hearing were not included as part of the stipulated transcript. The Headnote was revised in 1971 and put in the body of the ANSI 01 standard (Tr. S 255, 265).

[*20]

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The following persons were called to testify because of their membership in the ANSI 01 Committee: Lewis R. Morrison, Arnd A. Skonning, J. J. Prabulos and Dan Adair. Patrick F. Cestrone, who had been employed as the Director of the Office of Safety and Health Standards in the Department of Labor, testified about the drafting and issuance of consensus and federal standards as published on May 29, 1971. Nixon de Tarnowsky, Standards Coordinator of ANSI, and David Zabriskie, Secretary of the 1971 ANSI 01 Committee, also testified. Finally, Thaden Demus, an official of the American Plywood Association, also testified.

Respondent relies on the testimony of these witnesses as showing:

1. That the Secretary of Labor moved on a "crash" basis to issue an "initial package of 6(a) standards which Congress authorized or mandated the Secretary of Labor to pursue, post-haste * * *" (Cestrone - Tr. S 44). Consensus standards were "pulled into the general industry standards under certain legal guidelines" -- "a verbatim incorporation except for removal of language not couched in mandatory terms" (Tr. S 58). [*21] There was no intent to change the scope of any standard; it was accepted that ANSI standards met the test of "consensus", and it was felt no further review was required (Tr. S 60-1, 74-6).

2. ANSI considers a "consensus is achieved when substantial agreement is reached by concerned interests according to the judgment of a duly appointed authority. Consensus implies much more than a concept of a simple majority, not necessarily unanimity" (Tr. S 165).

3. A "Headnote" is an integral part of a standard. A consensus therefor must be obtained and was obtained for the 01 ANSI standard (Tr. S 172 -- deTarnowsky; 255 -- Zabriskie; 302 -- Skonning).

4. ANSI 01 prescribed guards would not permit some operations (e.g., daddoing). See Tr. S 277 (Morrison); 301-6 (Skonning).

5. The ANSI 01 Standards Committee has not had representatives from sawmill and structural plywood operators, and the standard was not considered applicable to their operations (Tr. S 254-5 -- Zabriskie; 338-44 -- Adair; 353 -- Demas).

C. Discussion

Presented for determination here is the question of whether the standard appearing at 29 CFR 1910.213(h)(1) was properly promulgated under the Occupational Safety [*22] and Health Act of 1970 and, thus, was valid and enforceable. If the standard is valid, the stipulated facts require a finding that Respondent violated the standard and the Act by failing to provide the lower guard on its 16-inch DeWalt radial arm saw located in the carpentry shop of the inspected work site.

Respondent contends that the Secretary took an ANSI "national consensus standard" developed by a limited industrial group (which did not include a representative of Respondent's industry) and then, without public comment or inquiry as to its possible effect on employment safety, deleted the headnote in the standard intended to restrict its application and promulgated it so it would have universal application. Thus, Respondent argues, the standard was not validly promulgated under the Act and cannot provide a basis for issuing a citation or assessment of a penalty against Respondent.

The Secretary contends, on the other hand, that the standard was properly promulgated. Being a national consensus standard, counsel for the Secretary states that the Secretary was authorized under Section 6(a) of the Act to immediately adopt it as an occupational safety and health standard so as [*23] "to provide as soon as possible, a minimum level of health and safety" (Secy's Br., p. 9). The deletion of the headnote was of no significance, says the Secretary, as it is considered implicit in the enforcement of the standard and, thus, remains a "reality under the Act" (Secy's Reply Br., p. 3). According to the Secretary, the headnote simply cautioned enforcing authorities to use discretion in applying the standard, but such discretion continues viable and is in fact exercised by compliance officers and other members of the Secretary's staff in enforcing the standard. However, the Secretary maintains that the Review Commission cannot pass on these arguments.

The Secretary's principal contention is that Respondent cannot raise the issue of validity of the standard in this proceeding. According to the Secretary, "the role of the Review Commission is limited to determining whether a particular standard has been violated by an employer as alleged by the Secretary" (Secy's Br., p. 6). The determination of whether the Secretary properly exercised his rule-making authority under Section 6 of the Act, says the Secretary, is a "judicial question" exclusively reserved to the United [*24] States Courts of Appeal under Section 6(f) of the Act -- and available only within 60 days after promulgation of a standard. The Secretary states that Respondent could have sought relief from application of the standard by filing a petition for a variance (or revocation) under Section 6 of the Act but adds that such remedy is of no assistance to it here as such a petition must be filed with the Secretary.

There is no definitive ruling by the Commission on the issue raised. Compare The Jos. Bucheit & Sons, Inc., Docket No. 295, dated August 1, 1972 and Oberhelman-Ritter Foundry, Incorporated, Docket No. 1572, dated July 31, 1973.

Respondent presents some compelling arguments in support of its position. The deletion of the headnote, an integral part of the ANSI standard as originally issued, does appear to have broadened the scope of the standard. Also, the variance procedure may well not afford a prompt or otherwise satisfactory method for testing the validity of a standard. Further, a Respondent employer may not be at all reassured by the knowledge that the Secretary used discretion in citing him. However, an examination of the Act and its legislative history persuades [*25] me that the Secretary's principal argument is essentially correct: that as an administrative law judge assigned to adjudicate an alleged civil violation of a standard and a proposed penalty therefor under the Act, I have no authority or power to inquire into -- or at least rule on -- the question of whether the Secretary properly promulgated the standard in question.

Section 2 of the Act declares that the Secretary of Labor is authorized "to set mandatory occupational safety and health standards" as well as to provide for the "development and promulgation of occupational safety and health standards"; also, that an Occupational Safety and Health Review Commission is created "for carrying out adjudicatory functions under the Act."

Section 3 of the Act defines an occupational safety and health standard to include a "national consensus standard," stipulating that it is the Secretary who determines the sufficiency of procedures utilized by the standards-producing organization and that it is the Secretary who designates it as such a standard. n9

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n9 Section 3(9) of the Act reads: "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.

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Section 6 provides for issuance of "interim," "permanent" and "emergency temporary" (for toxic materials, harmful physical agents) standards by the Secretary pursuant to specific procedures set forth therein. Interim standards, which include national consensus as well as established Federal standards, are to be issued by the Secretary through "use of an informal, shortened rule-making procedure" n10 within two years of enactment of the Act, "unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees . . ." (emphasis added, Section 6(a)). Permanent standards are to be promulgated pursuant to more detailed procedures, which provide for publication of a proposed rule and public hearing.

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n10 Legislative History of the Occupational Safety and Health Act of 1970 (S.2193, P.L.91-596), Senate Committee Print (June 1971), p.1186; (H.Rept. No. 91-1765, 91st Cong. 2d Sess., p. 33 (Dec. 16, 1970).

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Section 6 also permits an employer to petition the Secretary to be relieved of the requirements of a standard under certain conditions in the form of a "variance". Section 6(f) provides for "pre-enforcement" n11 review of standards within 60 days of their promulgation as follows:

(f) 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 . . ." (emphasis added).

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n11 Legis. Hist., supra, p. 1189 (H.Rept. No. 91-1765, supra, p. 36).

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Responsibility for seeking enforcement of standards (and the "general duty" clause contained in Section 5(a)(1)) was given to the Secretary by empowering him to enter the inspect work places (Section 8) and [*28] then to issue citations and notices of proposed penalties (Sections 9, 10).

Enforcement adjudication is provided for in Sections 10 and 12 of the Act. Section 10(c) provides that upon a timely notice of contest being filed:

. . . the Commission shall afford an opportunity for a hearing (in accordance with section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such section). The Commission shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief, and such order shall become final thirty days after its issuance. * * * (emphasis added). n12

Section 12 provides for the establishment, membership and operation of the Review Commission. Subsection (j) of Section 12 provides:

(j) a hearing examiner (administrative law judge) appointed by the Commission shall hear, and make a determination upon, any proceeding instituted before the Commission and any motion in connection therewith, assigned to such hearing examiner by the Chairman of the Commission, and shall make a report of any such determination which constitutes [*29] his final disposition of the proceedings. The report of the hearing examiner shall become the final order of the Commission within thirty days after such report by the hearing examiner, unless within such period any Commission member has directed that such report shall be reviewed by the Commission (parenthetical words and emphasis added).

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n12 Section 554 of Title 5 refers to Section 5 of the Administrative Procedure Act dealing with "Adjudication." Subsection (a)(3) thereof concerns "proceedings in which decisions rest soley on inspections, tests or elections."

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Section 17 provides for penalties and defines a "serious violation" under the Act. Section 17(j) authorizes the Commission to "assess all civil penalties" giving "due consideration" to the gravity of the violation and the employer's size, good faith and history.

Finally, Section 11 provides for judicial review of Commission decisions in United States Courts of Appeal on application of "any person adversely affected or aggrieved." Section 11(a) provides [*30] in part:

* * * Upon such filing, the court shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying, or setting aside in whole or in part, the order of the Commission and enforcing the same to the extent that such order is affirmed or modified. * * * No 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. 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. * * *

Thus, the Act empowers the Secretary to set standards and to seek their enforcement through inspection of work-places and issuance of citations and notices of proposed penalties. The only authority conferred upon a Review Commission administrative law judge is the power to adjudicate civil cases arising from issuance of [*31] such citations and notices of proposed penalties. n13

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n13 Such administrative law judge, of course, would also have the authority to act in a proceeding involving a citation charging a continuing violation for failure to correct or in a case involving a proposed change in abatement time period.

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An examination of both the Act and its legislative history persuades me that I am not empowered to consider and determine the validity of a standard issued by the Secretary in connection with the adjudication of an alleged violation of the standard. While it appears that the validity of a standard is reviewable by the courts on judicial review of a Commission adjudication under Section 11 of the Act (contrary to the position taken by the Secretary), this question is not properly before me for decision and can not be determined by me. n14

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n14 Senator Williams explained to the Senate that Section 6(f) of S.2193 as reported out of committee (almost identical to Section 6(f) as enacted -- see Legis. Hist. supra, pp. 245-6) as follows (Id., p. 431): "Fifth. The bill as reported by the committee provides an opportunity for a person affected by the promulgation of a standard to seek judicial review within 60 days of the promulgation of such standard or the standard may also be challenged during an enforcement proceeding. This is a very broad-scaled judicial review protection that completely meets any industry concerns regarding the ability to contest the standards in court" (emphasis added). Senator Dominick explained that the substitute bill in the Senate, S.4404, contained a provision providing for direct review within 30 days after publication of a standard "unlike the reported bill" (Id., p.424). In the House, Congressman Steiger pointed out that there was no (direct) judicial review of standard-setting in H.R. 16785 (Id., p. 1058), although the bill itself did expressly provide for the validity of a standard to be open throughout the adjudicative process (Id., pp. 837, 854, 871, 1129). It appears that Section 6(f) was included to permit a direct review of a standard as soon as it was promulgated by a party before being subjected to an enforcement proceeding -- i.e., a prompt and alternative judicial "Pre-enforcement Review" (Id., p. 1189; H. Rept. No. 91-1765, 91st Cong., 2d Sess., p. 36 (Dec. 16, 1970).

[*32]

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The statute as enacted directs, upon the filing of a timely notice of contest, that an opportunity for an "APA" hearing be afforded and that a determination be made of the proceeding in the form of a report. In making the determination for the Commission, at least initially, the administrative law judge is empowered under Section 10(c) to affirm, modify, or vacate a citation or a proposed penalty and direct "other appropriate relief." This latter authority no doubt includes the power to extend an abatement period in an appropriate case. It seems clear, however, that none of the powers granted to a Review Commission administrative law judge would confer the authority to determine whether the Secretary properly issued an occupational safety and health standard. n15

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n15 An "APA" hearing, which must afford parties proper notice, the opportunity to be heard and a decision by the presiding official (unless "unavailable") does not require an inquiry into the standard-making process in an enforcement proceeding. Acme Fast Freight, Inc., v. United States 154 F. Supp. 239 (S.D.N.Y. 1957); In re Lawson Milk Co. 8 Pike & Fischer Ad. Law 2d 309 (Dept. of Ag. 1958), The Diners Club, Inc., 10 Pike & Fischer Ad. Law 2d 1025 (P.O. Dept. 1961).

[*33]

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I find nothing in the legislative history of the Act which suggests that a Review Commission judge would be empowered to pass on the procedure followed by the Secretary in promulgating a standard. S.2193, introduced by Senator Williams on May 16, 1969, made the Secretary responsible for issuance of standards as well as adjudication under the Act. As the Senate Report stated in reporting it, the bill placed "the responsibility and accountability for administration of the total program in the Secretary of Labor" (Legis. Hist., cited footnote 10, supra, p. 155; S.Rept. No. 91-1282, 91st Cong., 2d Sess., p. 15, Oct. 6, 1970). A substitute bill introduced by Senator Dominick, S. 4404, provided for the creation of an independent National Occupational Safety and Health Board to issue standards as well as for an independent Occupational Safety and Health Appeals Commission to perform adjudicatory functions under the Act (Legis. Hist., supra, pp. 298,302-6). The idea of an independent adjudicatory agency survived, but of course the concept of an independent standards-writing agency did not. Senator [*34] Javits, as well as other senators, favored an independent adjudicatory agency which, as Senator Javits explained, would "preserve due process more easily" (Legis.Hist., supra, p. 195; S.Rept. No. 91-1282, supra, p. 56). Senator Javits introduced the amendment (with Senator Dominick joining as a co-sponsor) that made provision for a three-member adjudicatory "Panel," which became the "Commission" (Legis. Hist., supra, pp. 462-79, 507).

A bill introduced in the House on April 7, 1970, by Congressman Daniels, H.R. 16785, also placed adjudicatory as well as standards-writing authority in the Secretary. Section 11 of Congressman Daniels' bill provided that in adjudicating a violation, "the Secretary shall consider, among other things, the validity of any standard, rule, order or regulation alleged to have been violated. (Legis. Hist., supra, pp. 741, 837, 854, 871; H. Rept. No. 91-1291; 91st Cong., 2d Sess. July 9, 1970, pp. 7, 24, 41). The House committee reported the bill in an amended form which, while providing for retention of adjudicatory authority in the Secretary of Labor, rewrote Section 11 so as to provide for the adjudication of contested citations and proposed [*35] penalties as follows:

* * * The Secretary shall afford an opportunity for a hearing (in accordance with section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such section), and shall, if he determines such citation is valid, issue an order, based on findings of fact, confirming, denying or modifying the citation or assessment of penalty * * * (Legis. Hist., supra, p. 954; H.R. Rept. No. 91-1291, 91st Cong. 2d Sess., p. 62 (July 9, 1970)).

Thus, the provision specifically authorizing the consideration of the validity of a standard or regulation was dropped.

Congressman Steiger had also introduced H.R. 19200 in the House with Congressman Sikes as co-sponsor. H.R. 19200 was similar to S.4404 and called for establishment of a separate standards-writing Board as well as an adjudicatory Appeals Commission (Legis. Hist., supra, pp. 763-830). Both H.R. 16785, the Committee bill, and H.R. 19200 were debated in the House, with the Steiger-Sikes substitute being ultimately accepted by the House (Id., pp. 977-1053; Nov. 23, 1970; pp. 1057-1118, Nov. 24, 1970).

In Conference, it was agreed that the authority to set standards would be given to [*36] the Secretary of Labor rather than to a separate Board as provided for in the bill passed by the House. The Conference adopted the "provisions contained in both the House-and Senate-passed bills establishing an independent Commission to review all contested cases involving violations found or penalties assessed by the Secretary of Labor." (Legis. Hist., supra, p. 1149; Cong. Rec., Sen., Dec. 16, 1970). While the Senate bill provided for a "Review" Commission and the House bill for an "Appeals" Commission, "both bills were alike in legal effect" (Id., p. 1192; H. Rept. No. 91-1765, 91st Cong., 2d Sess., p. 39 (Dec. 16, 1970)).

The legislative history of the Act does not indicate that Congress intended to confer on the Commission any adjudicatory authority beyond that given to other agencies. There is no indication that Congress intended that an administrative law judge in acting on a citation issued under the Act would have authority beyond that needed to determine whether there was a violation. In urging the Senate to adopt his proposal for a separate adjudicatory body (which it did, Legis. Hist., supra, p. 479), Senator Javits explained that such body would "have [*37] the same type of authority that the Federal Trade Commission exercises" (Id, supra, p. 462). The purpose of having the separate adjudicatory body, he explained, was to assure a "concept of fairness" (Id., p. 470. n16

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n16 The proponents of the independent adjudicatory concept were not seeking to confer greater authority over adjudication under the Act; rather, they were concerned that the adjudication should be separated from the exercise of other functions under the Act in order to assure more objectvity. "I feel that an independent enforcement agency will come nearer commanding the confidence of all concerned . . ." (Senator Holland, Legis., Hist., supra, p. 475). Congressman Steiger urged "separation of powers under the substitute bill" that would create an Appeals Commission "which has as its sole function enforcement of this law . . ." (Id., p. 991).

After the Conferees agreed on the bill, Congressman Steiger explained that the concept of a separate health appeals Commission "to handle administrative adjudications" had prevailed (Id., p. 1212). Congressman Daniels, also a Conferee, explained that the responsibility of the Commission was "to hear appeals and set penalties" (Id., 1210). Senator Williams urged adoption of the Conference bill in the Senate, pointing out that Senator Javits' proposal for an independent enforcement Commission was adopted "to separate the adjudication of violations from the other functions . . . to provide every assurance that fairness and due process would be fully served" (Id., p. 1147). Senator Prouty, another Conferee, explained that the Conference bill would establish "an independent Commission to review all contested cases involving violations found or penalties assessed . . . subject to judicial review . . ." (Id., p. 1149).

[*38]

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Perhaps the most persuasive indication that Congress did not intend that the validity of a standard should be an issue in a Commission adjudication is the fact that the bill expressly providing for such authority (H.R. 16785) was rejected. n17

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n17 It should be noted that "due process" does not require or authorize an inquiry into the rule-making process during an adjudicatory enforcement action. See Yakus v. United States, 321 U.S. 414 (1944).

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The language of Section 6(f) of the Act, which expressly provides for "challenging the validity" of a standard in a United States Court of Appeal, is also a strong indication that Congress never intended for the issue to be determined in an enforcement action before the Review Commission. n18

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n18 As pointed out supra, I am of the view contrary to the position taken by the Secretary, that the validity of a standard may be considered on judicial review of an enforcement action under Section 11. The Respondent may argue the point (indeed he must, to preserve it under Section 11), but I am without authority to rule upon it. The issue is analagous to the argument concerning the constitutionality of a statute: it cannot be determined by an administering agency or official but must be reserved for judicial review. See, for example, Engineers Public Service Co. v. Sec., 138 F.2d 936 (D.C. Cir. 1943) vacated (moot) 332 U.S. 788 (1947).

[*39]

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That case also involved the possible application of Section 213(h)(1) to a radial arm saw. It was determined in that case that it was impossible for Respondent to place a lower guard on a 30" radial arm saw as prescribed by the standard without creating a greater hazard to employees so the citation and proposed penalty were vacated. n19 Respondent Baxter also argued the invalidity of Section 213(h)(1), but it was not necessary to reach that issue.

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A Review Commission administrative law judge no doubt has the power to determine whether an occupational standard can be applied to a particular state of facts. See for example, Secretary of Labor v. [*40] The dismissal of a citation or proposed penalty on the basis that the Secretary did not follow the proper procedure in promulgating the cited standard calls for the exercise of a power I do not believe Congress conferred upon a Review Commission administrative law judge.

The facts of record here tell little of Respondent's saw and its operation. It is a 16-inch radial arm saw that turns up to 3600 rpm. The hand or body of the operator comes to within four to 12 inches of the saw, and there is no lower guard as prescribed by Section 213(h)(1). It is available for daily use and was on the day of the inspection. Respondent's management was aware of the unguarded condition of the saw and there was a potential for an injury to an employee of Respondent. n20 There is nothing in the record to indicate that the lower guarding of Respondent's [*41] saw would create any additional hazard. On the stipulated facts I must find that Respondent violated 29 CFR 1910.213(h)(1) and, thus, Section 5(a)(2) of the Act and that such violation was of a "serious" nature.

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n20 For a violation to be "serious" under Section 17(k) of the Act (set forth in footnote 1, supra), there must be a substantial probability that serious physical harm could result from a condition about which Respondent knew or should have known.

Paragraph 7 of the first stipulation (supra, p. 5) could be interpreted as meaning that no accident and no injury would be possible. It is apparent, however, that the parties did not intend to exclude an accidental placing of a hand within 4" of the saw as it was stipulated that any violation, if the standard is valid, would be "serious" (Para. 15, supra, p. 6)

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Respondent would have me dismiss the citation on the broad basis that the standard is null and void -- as to all radial saws and all employers. Finding myself without authority to make such [*42] ruling, the citation must be affirmed.

The record is also scanty with respect to the factors relevant to the assessment of a civil penalty under Section 17(j) of the Act: Respondent's good faith, size, history and gravity of the violation. It is apparent from the stipulation that the Secretary concedes there is nothing which reflects adversely on Respondent's good faith or history. The Secretary, on the other hand, gives Respondent no credit on the basis of its size (as it had over 100 employees). Also, the Secretary appears to have given no consideration to the gravity of the alleged violation other than to determine that it was "serious" and that, as in other cases (see, for example, Nacirema Operating Co., Inc., Docket No. 4, dated February 7, 1972 and Aro, Inc., Docket 2165, dated December 27, 1973), the unadjusted penalty must start at $1,000. However, the parties have agreed that should a violation be found a penalty of $600. would be appropriate. Under these circumstances, penalty in that amount is assessed. See Secretary of Labor v. OSAHRC, (Brent Towing Company, Inc., OSAHRC No. 1003,    F. 2d.    (5th Cir. July 3, 1973)

CONCLUSIONS OF LAW [*43]

Based on the foregoing, the following conclusions of law are entered:

1. Respondent is now, and at all times material herein, an "employer" engaged in a business affecting commerce within the meaning of Section 3 of the Act.

2. The Commission has jurisdiction over the parties and the subject matter of this proceeding.

3. During an enforcement proceeding before the Review Commission, an administrative law judge does not have authority to determine whether the Secretary of Labor followed the proper procedure in promulgating an occupational safety and health standard.

4. The Secretary established violation of the occupational safety and health standard appearing at 29 CFR 1910.213(h)(1) and Section 5(a)(2) of the Act.

5. The violation was "serious" within the meaning of Section 17(k) of the Act.

6. A penalty of $600. is appropriate for such violation.

ORDER

Based on the foregoing, it is ORDERED that the Citation for Serious Violation No. 1 and the related proposed penalty therefor are AFFIRMED.

Harold A. Kennedy, Judge, OSAHRC

Dated: Feb. 12, 1974