1 of 202 DOCUMENTS

TURNER COMPANY


A. SCHONBEK & CO., INC.


NORANDA ALUMINUM, INC.


GENERAL MOTORS CORP., GM ASSEMBLY DIV.


ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.


CLEMENT FOOD COMPANY


MILLCON CORPORATION


FWA DRILLING COMPANY, INC.


CCI, INC.


GENERAL ELECTRIC COMPANY


CONSOLIDATED ALUMINUM CORPORATION


THE BRONZE CRAFT CORPORATION


CARGILL, INC.


CHAPMAN CONSTRUCTION CO., INC.


GALLO MECHANICAL CONTRACTORS, INC.


SPECIAL METALS CORPORATION


WILLAMETTE IRON AND STEEL COMPANY


NASHUA CORPORATION


WESTINGHOUSE ELECTRIC CORPORATION


RESEARCH-COTTRELL, INC.


ROCKWELL INTERNATIONAL CORPORATION


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.


BUNKOFF CONSTRUCTION CO., INC.


GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION


HARRIS BROTHERS ROOFING CO.


GENERAL DIVERS COMPANY


ORMET CORPORATION


R. ZOPPO CO., INC.


COEUR D'ALENE TRIBAL FARM


L. A. DREYFUS COMPANY


CMH COMPANY, INC.


BENTON FOUNDRY, INC.


MICHAEL CONSTRUCTION CO., INC.


WHIRLPOOL CORPORATION


BROWN & ROOT, POWER PLANT DIVISION


MARION POWER SHOVEL CO., INC.


ERSKINE-FRASER CO.


MORRISON-KNUDSEN AND ASSOCIATES


THE BOAM COMPANY


DIC-UNDERHILL, a Joint Venture


C. R. BURNETT AND SONS, INC.; HARLLEE FARMS


STRIPE-A-ZONE, INC.


FORTE BROTHERS, INC.


RAYBESTOS FRICTION MATERIALS COMPANY


TEXLAND DRILLING CORPORATION


THE ANACONDA COMPANY, WIRE AND CABLE DIVISION


SAM HALL & SONS, INC.


VAMPCO METAL PRODUCTS, INC.


LEONE INDUSTRIES, INC.


ASARCO, INC.


DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY


PLUM CREEK LUMBER COMPANY


PLUM CREEK LUMBER COMPANY


STEARNS-ROGER, INC.


FERRO CORPORATION, (ELECTRO DIVISION)


AMERICAN PACKAGE COMPANY, INC.


BROWN & ROOT, INC., POWER PLANT DIVISION


FLEETWOOD HOMES OF TEXAS, INC.


DONALD HARRIS, INC.


A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.


ELECTRICAL CONSTRUCTORS OF AMERICA, INC.


DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)


ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY


NAVAJO FOREST PRODUCTS INDUSTRIES


METROPAK CONTAINERS CORPORATION


AUSTIN BUILDING COMPANY


BABCOCK AND WILCOX COMPANY


DARRAGH COMPANY


BABCOCK & WILCOX COMPANY


OTIS ELEVATOR COMPANY


R. ZOPPO COMPANY, INC.


LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS


PENNSYLVANIA POWER & LIGHT CO.


HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY


NORTHWEST AIRLINES, INC.


INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.


GENERAL MOTORS CORPORATION, INLAND DIVISION


WELDSHIP CORPORATION


S & S DIVING COMPANY


SNIDER INDUSTRIES, INC.


NATIONAL STEEL AND SHIPBUILDING COMPANY


MAXWELL WIREBOUND BOX CO., INC.


CONTINENTAL GRAIN COMPANY


MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY


CAPITAL CITY EXCAVATING CO., INC.


GAF CORPORATION


PPG INDUSTRIES (CARIBE) a Corporation


DRUTH PACKAGING CORPORATION


SOUTHWESTERN ELECTRIC POWER COMPANY


TUNNEL ELECTRIC CONSTRUCTION CO.


WEATHERBY ENGINEERING COMPANY


JOHNSON STEEL & WIRE CO., INC.


AUSTIN ROAD CO.


MAYHEW STEEL PRODUCTS, INC.


LADISH CO., TRI-CLOVER DIVISION, a Corporation


PULLMAN POWER PRODUCTS, INC.


NATIONAL ROOFING CORPORATION


OSCO INDUSTRIES, INC.


HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY


S.J. GROVES AND SONS COMPANY


CAR AND TRUCK DOCTOR, INC.


PRESTRESSED SYSTEMS, INC.


TEXACO, INC.


GEORGIA HIGHWAY EXPRESS, INC.


RED LOBSTER INNS OF AMERICA, INC.


SUNRISE PLASTERING CORP.


STONE & WEBSTER ENGINEERING CORPORATION


H.B. ZACHRY COMPANY (INTERNATIONAL)


NATIONAL INDUSTRIAL CONSTRUCTORS, INC.


BUSHWICK COMMISSION COMPANY, INC.


CIRCLE T DRILLING CO., INC.


J.L. FOTI CONSTRUCTION COMPANY, INC.


TEXACO, INC.


KENNETH P. THOMPSON CO., INC.


HENRY C. BECK COMPANY


HEATH & STICH, INC.


FARMERS EXPORT COMPANY


FOSTER AND KLEISER


TURNER WELDING & ERECTION CO., INC.


TRI-CITY CONSTRUCTION CO.


THE DURIRON COMPANY, INC.


SAMSON PAPER BAG CO., INC.


MEL JARVIS CONSTRUCTION COMPANY, Inc.


MIDWEST STEEL ERECTION, INC.


GEISLER GANZ CORPORATION


NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY


NATIONAL MANUFACTURING COMPANY


WALLACE ROOFING COMPANY


REYNOLDS METALS COMPANY, INC.


UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.


SUFFOLK COUNTY CONTRACTORS, INC.


NORANDA ALUMINUM, INC.


ROOFING SYSTEMS CONSULTANTS, A DIVISION OF BIT U TECH, INC.


GENERAL ELECTRIC COMPANY


SERVICE SPECIALTY, INC.


ECCO HIGH FREQUENCY ELECTRIC CORP.


HENRY C. BECK COMPANY


REPUBLIC ROOFING CORPORATION


EASLEY ROOFING & SHEET METAL CO., INC.


MIDDLETOWN VOLKSWAGEN, INC.


RICHARD ROTHBARD, INC.


AUTOMATIC SPRINKLER CORPORATION OF AMERICA


PENNSUCO CEMENT AND AGGREGATES, INC.

OSHRC Docket No. 15462

Occupational Safety and Health Review Commission

May 8, 1980

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

William F. Haspers, for the employer

Mr. Joe A. Adam, Director, Department of Safety & Health, United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry, AFL-CIO-CLC, for the employees

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). A decision of Administrative Law Judge John S. Patton is before the Commission pursuant to section 12(j) of the Act, 29 U.S.C. 661(i).

After investigating a fatal accident at Pennsuco Cement and Aggregates' ("Pennsuco") worksite in Hialeah, Florida, the Occupational Safety and Health Administration (OSHA) cited Pennsuco for allegedly committing a violation of section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1). n1 Pennsuco contested the citation and raised, among other arguments, the affirmative defense that it was entitled to an exemption from OSHA's authority under section 4(b)(1) of the Act, 29 U.S.C. 653(b)(1). n2 The judge rejected Pennsuco's section 4(b)(1) [*2] claim, but vacated the citation on finding that the alleged violation was "a single isolated instance which the employer could not have known would happen" and on other grounds. On review, we hold that the judge erred in rejecting Pennsuco's claim to a section 4(b)(1) exemption. Accordingly, while affirming the judge's decision to vacate the citation, we do so without reaching the merits of the alleged violation. n3

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n1 Section 5(a)(1) provides: "Sec. 5(a) Each employer - (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

n2 Section 4(b)(1) provides, in pertinent part: "Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health."

It is well established that the burden of proving that a particular working condition is exempt from the Act pursuant to 4(b)(1) rests with the employer claiming the exemption. Idaho Travertine Corp., 77 OSAHRC 57/C9, 3 BNA OSHC 1535, 1975-76 CCH OSHC P20,013 (No. 1134, 1975), and cases cited therein.

n3 Chairman Cleary granted the Secretary's petition for review of the merits of the citation. Commissioner Barnako granted Pennsuco's conditional petition for review of the 4(b)(1) issue.

[*3]

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I

Pennsuco is engaged in the production of Portland cement. Its Hialeah facilities encompass all steps in the process, from the mining of the limestone in a quarry on the premises, through the processing of the raw materials at the cement plant, and finally to the production of the granulated substance that constitutes dry cement. n4 After the limestone is mined, it is crushed, blended, and slurried with other materials in water in the cement plant. The slurry is pumped into storage tanks from which it is fed on demand into large wet rotary kilns, where it is heated at temperatures up to 2200 degrees and thereby transformed into clinker. The clinker is subsequently ground into the dry, fine powder that is Portland cement.

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n4 Ninety percent of all Portland cement operations include both the quarry and cement plant at the same site.

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The citation in this case arose out of a steam explosion which occurred in one of the wet rotary kilns [*4] in Pennsuco's cement plant. Prior to the explosion, OSHA had never inspected Pennsuco's facilities. However, the Mining Enforcement and Safety Administration (MESA) of the Department of the Interior had inspected Pennsuco's operations, including the cement plant and kilns, on several occasions during the period from 1971 until the explosion in September, 1975. Following the explosion, both MESA and OSHA sent compliance officers to conduct investigations. After several days, the MESA representative discontinued his inspection and told the OSHA compliance officer that the accident was under OSHA's authority. Approximately eight months later, MESA conducted an unrelated inspection of Pennsuco's cement plant and kilns.

II

Pennsuco argued before the judge that OSHA had no authority to either conduct the investigation of the accident at its cement plant or to issue the citation because OSHA's authority had been preempted by MESA. n5 Both parties agreed that MESA had regulations that were applicable to Pennsuco's cement plants in general and its kilns in particular. n6 However, they disagreed over whether these regulations were being sufficiently "enforced" by MESA to constitute an [*5] exercise of statutory authority within the meaning of section 4(b)(1).

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n5 MESA's functions have subsequently been assumed by the Mine Safety and Health Administration (MSHA) of the Department of Labor. See Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801-960.

n6 See 30 C.F.R. Parts 55 & 56.

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Pennsuco contended that because MESA had applicable regulations and was applying those regulations to Pennsuco's cement plant and kilns both prior to and after the alleged OSHA violation, MESA had preempted OSHA's authority to enforce the requirements of the Act in its facility. The Secretary, however, asserted that OSHA's authority was not preempted as of the time of the explosion because MESA, pursuant to a dispute over the areas of each agency's authority, had temporarily suspended enforcement of its regulations insofar as they applied to kilns in cement plants.

The parties introduced evidence into the record on the issue of the authority that OSHA and MESA possessed in situations arguably subject to [*6] either's authority. The two agencies had first sought to delineate the boundaries of the authority that each would exercise in a Memorandum of Understanding executed in April, 1974, and published at 39 Fed. Reg. 27,382 (1974). In the Memorandum, MESA assumed authority over safety and health matters in mines and mills, while OSHA was given authority over those processes beyond milling. n7 The Memorandum further stated that where there was uncertainty over whether a working condition was within the milling process, MESA would make the determination as to which agency had the authority to inspect. n8

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n7 The Memorandum stated, in pertinent part: "MESA has enforcement authority for employee safety and health in mines and mills. OSHA has safety and health enforcement authority in processes beyond mines and mills."

These boundaries of MESA's authority were consistent with the Federal Metal and Nonmetallic Mine Safety Act, 30 U.S.C. 721-740. This Act authorized the Secretary of the Interior to promulgate and enforce safety and health standards regarding the working conditions of employees engaged in underground and surface mining, and defined mining as including the milling of the extracted minerals. 30 U.S.C. 721(a) and (b).

n8 The Memorandum states, in pertinent part: "Where . . . it is uncertain whether a working condition is within the milling process or beyond, MESA will determine where milling ends, thereby providing OSHA with a definition of the beginning of its worker coverage."

[*7]

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Subsequently, in 1975, MESA and OSHA agreed that a further resolution of each agency's authority within the cement making industry was needed. The Associate Solicitor of Interior for MESA, Robert Long, prepared an analysis of the problem, which concluded that the cement making process was a milling process and therefore that MESA had authority over the entire Portland cement making operation. In June, 1975, three months prior to the explosion, MESA sent OSHA the analysis along with a letter in which MESA stated that it had the exclusive authority to inspect cement plants. In February, 1976, five months after the explosion, OSHA sent a reply letter basically agreeing with MESA's determination. n9 At the hearing in this case, Long testified that during the period from the issuance of the Memorandum of Understanding in 1974 until OSHA's reply letter in February, 1976, MESA's compliance officers inspected cement making facilities only up to, but not including, the kilns.

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n9 In its reply letter, OSHA did qualify its agreement with a statement that it would continue to enforce its regulations as to working conditions within the cement making operation which were not covered by MESA regulations. In the present case, however, the Secretary does not contend that the pertinent working conditions are outside the coverage of MESA's standards.

[*8]

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III

The judge found that MESA, as of the date of the explosion, had promulgated standards which could have been applied to the operation of cement kilns. He also found that, since February, 1976, MESA had been exercising its authority over kilns. However, on the basis of Long's testimony, the judge determined that, as of the date of the explosion, MESA had suspended its enforcement authority over kilns. In his view:

[i]t could not have been the intent of Congress to permit an agency to pass a regulation and then, by deciding that the regulation will not be implemented, remove employees from any protection. Such a construction [of section 4(b)(1)] would run completely counter to the announced purpose of Congress in enacting the Occupational Safety and Health Act when Congress stated that it was the intent that as nearly as possible every employee be assured a safe and healthy working place.

Accordingly, Judge Patton concluded that MESA had not been exercising its authority within the meaning of section 4(b)(1) and, therefore, OSHA's authority had not been preempted.

The Secretary urges adoption [*9] of the judge's conclusion. He agrees with the judge's reasoning that preempting OSHA's authority when another agency has suspended enforcement of its own safety and health regulations would leave workers without protection and thereby be contrary to the Congressional intent underlying the Act. The Secretary also asserts that another agency's regulations must be actively enforced as well as promulgated before OSHA's authority is preempted under section 4(b)(1). For support, the Secretary cites to Texas Eastern Transmission Corp., 75 OSAHRC 88/D9, 3 BNA OSHC 1601, 1605 n. 9a, 1975-76 CCH OSHD P20,092 at 23,902 n. 9a (No. 4091, 1975), in which Chairman Cleary stated his personal view that an agency which has adopted a regulation prescribing safety or health requirements, but which is unlikely to enforce that regulation, has not exercised its statutory authority within the meaning of section 4(b)(1) of the Act.

Pennsuco argues that the judge erred in rejecting its claim to a section 4(b)(1) exemption. The company contends that the judge improperly relied on the evidence indicating that MESA had temporarily suspended its inspections of kilns. As it argued before the judge, Pennsuco [*10] maintains that MESA had exercised its authority over kilns within the meaning of section 4(b)(1) by both prescribing and enforcing safety and health regulations applicable to kilns. Pennsuco also points out that section 4(b)(1) provides for OSHA preemption whenever another agency exercises statutory authority to "prescribe or enforce" safety and health rules. Thus, Pennsuco maintains that the fact MESA had promulgated safety and health regulations applicable to its kilns is sufficient to preempt OSHA regardless of whether MESA was actively enforcing those rules.

IV

We have held that a section 4(b)(1) exemption is triggered only when another federal agency actually "exercises" its authority over specific working conditions. Indiana Harbor Belt Railroad Co., 77 OSAHRC 13/A2, 4 BNA OSHC 2006, 1976-77 CCH OSHD P21,473 (No. 12420, 1977) (Advance Notice of Proposed Rulemaking by the Federal Railway Administration is not a sufficient exercise of authority); Southern Pacific Transportation Co., 74 OSAHRC 83/A2, 2 BNA OSHC 1313, 1974-75 CCH OSHD P19,054 (No. 1348, 1974), aff'd, 539 F.2d 386 (5th Cir. 1975), cert. denied, 434 U.S. 874 (1977). However, we reject [*11] the Secretary's contention that MESA was not "exercising" its authority in the circumstances of this case.

At the time of the alleged violation, MESA possessed the statutory authority to regulate the safety and health of the employees in facilities such as Pennsuco's cement plant. See note 7 supra. Toward that end, MESA had promulgated regulations applicable to Pennsuco's kilns. These regulations and the Memorandum of Understanding delineating the authority of both MESA and OSHA had been published in the Federal Register, thereby giving Pennsuco and similarly situated employers notice of their responsibilities for protecting the safety and health of their employees. 44 U.S.C. 1507. Moreover, both prior to and after the accident that led to the present citation, MESA had enforced its regulations through a program of inspections of Pennsuco's plant.

That MESA may have temporarily ceased its inspections of kilns does not alter the fact that MESA had exercised its authority to regulate the safety and health of Pennsuco's employees. Any oversight of the adequacy of another agency's enforcement activities is beyond the scope of a permissible inquiry under section 4(b)(1). [*12] As we stated in Mushroom Transportation Co., 73 OSAHRC 51/E10, 1 BNA OSHC 1390, 1392, 1973-74 CCH OSHD P16,881 at 21,591 (No. 1588, 1974), appeal dismissed, No. 74-1014 (3d Cir. 1974), "Section 4(b)(1) does not require that another agency exercise its authority in the same manner or in an equally stringent manner [as OSHA]." See also Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d 1161, 1169-70 (D.C. Cir. 1975).

We also cannot conclude that finding OSHA lacked authority to issue the present citation would contravene the purposes of the Act by leaving Pennsuco's employees without any protection, as the Secretary argues. In the Memorandum of Understanding, "kiln treatment" was listed as a milling operation and therefore within the purview of MESA's regulations. Thus, prior to the accident, both OSHA and MESA had determined that MESA's regulations were the appropriate means for providing protection to workers involved in cement plant kiln operations. Publication of the Memorandum of Understanding in the Federal Register gave Pennsuco and similarly situated employers notice that compliance with MESA regulations would fulfill their duty to [*13] protect the safety and health of kiln employees. Nothing that happened between the publication of the Memorandum of Understanding and the explosion gave Pennsuco notice that it had any further duty, or indicated to Pennsuco that it did not have to comply with MESA regulations.

To declare now that Pennsuco also had to comply with OSHA requirements at the time of the accident would add nothing to the safety of its employees, for Pennsuco could not have known of such an obligation at the only relevant time: the time immediately preceding the accident. Compliance requirements of which an employer lacks fair notice cannot protect the safety and health of employees. See Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976). Accordingly, finding that OSHA had authority to issue the citation in this case would merely serve to impose a penalty on Pennsuco for past conduct where the company had no notice that it was subject to OSHA requirements. n10 Beyond the due process problem this would create, such a course of action would be contrary to the purpose of the Act, which, "is designed not to punish, but rather to achieve compliance with the standards and the abatement of [*14] safety hazards." Anning-Johnson Co. v. OSHRC, 516 F.2d 1081, 1088 (7th Cir. 1975). n11

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n10 In the proper circumstances, the Commission can issue a prospective remedial order defining the duties of an employer who could not previously have had fair notice of its obligations under the Act. Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978). However, any prospective order we could issue based on Pennsuco's kiln activities at the time of the accident would be meaningless, as the question of OSHA's authority over facilities such as Pennsuco's cement plant is now controlled by an agreement between MSHA and OSHA, published at 44 Fed. Reg. 22,827 (1979). Subsection B(6)(a) of that Agreement provides that "MSHA jurisdiction includes . . . cement plants." We also note that the problem of overlap of authority between OSHA and "other Federal agencies," the issue that 4(b)(1) addresses, is no longer present in this context, as both MSHA and OSHA are within the Department of Labor and controlled by the Secretary.

n11 Commissioner Barnako agrees with the conclusion that MESA was exercising statutory authority to enforce its safety and health regulations in cement plants. However, he believes that an inquiry into the enforcement efforts of MESA is unnecessary to resolve the preemption issue. In Commissioner Barnako's view, if an agency has promulgated a standard or regulation affecting a certain working condition, then that rule preempts OSHA from citing an employer for a violation of the Act arising out of that working condition regardless of the stringency with which the other agency enforces the rule or, indeed, regardless of whether the other agency is actively enforcing the rule at all. As Pennsuco points out, such a conclusion follows from the fact that 4(b)(1) provides for OSHA preemption whenever another agency exercises statutory authority to "prescribe or enforce" occupational safety and health rules. See Organized Migrants in Community Action, Inc. v. Brennan, supra; American Airlines, Inc., 75 OSAHRC 2/C13, 3 BNA OSHC 1624, 1975-76 CCH OSHD P20,129 (No. 9392, 1975).

[*15]

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Our conclusion that OSHA is preempted under the circumstances of this case is consistent with the view expressed by Chairman Cleary in Texas Eastern Transmission Corp., supra. That opinion concerned a situation in which "another Federal agency adopts a regulation, but there is no likelihood that the regulation will be enforced." Here, however, MESA had actively enforced its regulations applicable to kilns prior to the accident. Even giving the Secretary the benefit of the doubt, there was at most a temporary suspension of enforcement inspections, and this suspension was not communicated to affected employers. Thus, unlike a situation where an employer has reason to believe that another agency will not enforce its regulations, Pennsuco had every reason to believe that it continued to be subject to MESA regulations, and therefore to protect its employees as those regulations specified. As far as Pennsuco was concerned, it could be inspected by MESA at any time. Indeed, MESA did investigate the accident that led to this case. Thus, it cannot be said that there was no likelihood MESA would enforce [*16] its regulations under the facts of this case.

Accordingly, we conclude that MESA had exercised its statutory authority to regulate the safety and health of employees in facilities such as Pennsuco's cement kilns and that OSHA is therefore preempted from citing Pennsuco for violations of the Act arising out of those working conditions. Accordingly, the citation is vacated. SO ORDERED. n12

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n12 Judge Patton sealed the entire record in this case, with the exception of his decision. He did so in order to protect alleged trade secrets of Pennsuco which had been disclosed during the hearing. The Secretary argues that the judge erred by sealing the entire record. In his view, none of Pennsuco's confidential matters constituted trade secrets. Even if there were some trade secrets disclosed at the hearing, the Secretary asserts that the judge's order to seal the entire record was overly broad. The Secretary requests that the Commission either open the entire record or seal only those portions which contain trade secrets.

Regarding the Secretary's assertion that Pennsuco's confidential matters did not merit trade secret status, we note that Pennsuco's evidence at trial was unrebutted. We accept the judge's finding of trade secrets. As to the alleged overbreadth of the judge's order, in general the scope of a protective order is left to the discretion of the administrative law judge. See Commission Rule of Procedure 11, 44 Fed. Reg. 70,106, 70,111 (1979), to be codified at 29 C.F.R. 2200.11 [formerly Rule 11(a), 29 C.F.R. 2200.11(a)]. This discretion includes the authority to seal the entire record. Reynolds Metals Co., 78 OSAHRC 51/F1, 3 BNA OSHC 1749, 1975-76 CCH OSHD P20,214 (No. 4385, 1975). The matters which Judge Patton found to be trade secrets are repeatedly mentioned throughout the record. Moreover, the record is extensive, and separating those parts containing trade secrets from the entire record would be a prodigious task. Under such circumstances, the judge did not abuse his discretion in sealing the entire record.

[*17]

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CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

On the basis of the notice requirements of the due process clause, the citation in this case must be vacated. See Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978). However, in reaching the same disposition, the majority decision erodes long standing Commission precedent, emasculates section 4(b)(1) of the Act, n1 and conflicts with the remedial purposes of the Act. As a consequence of this decision, employees may be left without the protection of any federal agency.

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n1 Section 4(b)(1), 29 U.S.C. 653(b)(1), provides:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

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I

The alleged violation [*18] in this case involves Pennsuco's operation of a cement kiln. There is no dispute that, during the period from July 1974 through February 1976, MESA inspected cement-making facilities. However, it is also undisputed that MESA had suspended its inspection of kilns at the time of the OSHA inspection in this case. The majority holds that Pennsuco was exempt from mandatory compliance with the Act by virtue of section 4(b)(1) because MESA was exercising its statutory authority to regulate the safety and health of the affected employees, despite MESA's suspension of enforcement activity at the time of the OSHA inspection. They rely on Mushroom Transportation Co., Inc., 73 OSAHRC 51/E10, 1 BNA OSHC 1390, 1973-74 CCH OSHD P16,881 (No. 1588, 1974), appeal dismissed, No. 74-1014 (3d Cir. April 17, 1974), for the proposition that section 4(b)(1) does not permit an inquiry into whether another agency exercises its authority in as stringent a manner as OSHA. This reliance on Mushroom Transportation Co. reveals a basic misunderstanding of the issue in this case. The fundamental inquiry is not whether MESA exercised its authority in an adequate manner but whether MESA exercised [*19] its authority at all.

MESA clearly possessed the authority both to prescribe and enforce standards or regulations affecting occupational safety or health. The issue is whether under section 4(b)(1) the exempt status of working conditions regulated by another federal agency is affected when, after prescribing safety or health standards, the agency officially suspends enforcement of those standards.

Pennsuco argues that there is an exemption under section 4(b)(1) of the Act whenever another agency exercises statutory authority to "prescribe or enforce" occupational safety or health standards. Respondent relies solely on MESA's promulgation of standards applying to its kilns as triggering a section 4(b)(1) exemption in this case. It concludes that an inquiry into whether those standards are enforced is irrelevant under a literal reading of the statute.

It is a basic principle of legal interpretation that statutory language is to be interpreted "so as to give effect to the intent of Congress." U.S. v. American Trucking Ass'ns, 310 U.S. 534, 542 (1940). It is not to be read in a manner that "results in the emasculation" of a provision when a less literal reading would preserve [*20] its meaning. Markham v. Cabell, 326 U.S. 404, 409 (1945). Instead, remedial legislation must be liberally construed and "exemptions from its sweep should be narrowed and limited to effect the remedy intended." Piedmont & Northern Ry. Co. v. Interstate Commerce Commission, 286 U.S. 299, 311-12 (1932). Even when a literal interpretation of statutory language does not produce absurd results but only results that are inconsistent with the legislative policy, the statutory purpose must control. U.S. v. American Trucking Ass'ns, supra at 543. To this end, courts have interpreted the terms "and" and "or" interchangeably and have substituted one for the other when to do so better serves the legislative intent. 1A SUTHERLAND STATUTORY CONSTRUCTION 21.14 at 91 (3d ed. 1972). As the Supreme Court has stated:

[w]e start with the proposition that the word "or" is often used as a careless substitute for the word "and"; that is, it is often used in phrases where "and" would express the thought with greater clarity. That trouble has been with us for a long time: see, e.g. United States v. Fisk, 3 Wall. [70 U.S.] 445, 18 L.Ed. 243.

DeSylva v. Ballentine, 351 U.S. 570, [*21] 573 (1956), cited in United States v. Snider, 502 F.2d 645, 653 n. 15 (4th Cir. 1974). Moreover,

"[i]n the construction of statutes, it is the duty of the court to ascertain the clear intention of the legislature. In order to do this, courts are often compelled to construe 'or' as meaning 'and' and again 'and' as meaning 'or'."

Travelers Ins. Co. v. Norton 24 F.Supp. 243, 246 (D.Del. 1938), quoting United States v. Fisk, supra at 447. n2

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n2 For a discussion of the inclusive "or" see R. DICKERSON, THE FUNDAMENTALS OF LEGAL DRAFTING 6.2 (1965).

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Pennsuco's position is fundamentally inconsistent with the stated purpose of the Act "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions. . .," 29 U.S.C. 651(b), because it allows for the creation of a significant vacuum in the protection for American workers. Section 4(b)(1) "is intended to avoid duplication in the enforcement of occupational safety and health regulations. . . ." [*22] Southern Pacific Transportation Co., 74 OSAHRC 83/A2, 2 BNA OSHC 1313, 1316, 1974-75 CCH OSHD P19,054 at p. 22,787, (No. 1348, 1974), aff'd, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977). (Cleary, Commissioner, concurring); also Mushroom Transportation Co., supra. Accordingly, "prescribe or enforce" must be read in the conjunctive sense, and an employer is exempt from mandatory compliance with the Act's requirements only when another agency is actually enforcing occupational safety or health standards. n3

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n3 The administrative structure of MESA reinforces this interpretation. Under its enabling statute, MESA is delegated the authority to prescribe and enforce occupational safety and health standards. Thus, an exercise of authority sufficient to give rise to a section 4(b)(1) exemption cannot be found when an agency with both authorities promulgates applicable standards yet declines to enforce them.

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It is well established that a section 4(b)(1) exemption will lie [*23] only when at the time of the claimed exemption another agency is actually exercising its authority. Indiana Harbor Belt Railroad Co., 77 OSAHRC 13/A2, 4 BNA OSHC 2006, 1976-77 CCH OSHD P21,473 (No. 12420, 1977); Southern Pacific Transportation Co., supra; Texas Eastern Transmission Corp., 75 OSAHRC 88/D9, 3 BNA OSHC 1601, 1605 n.9a, 1975-76 CCH OSHD P20,092 at p. 23,902 n.9a (No. 4091, 1975) (individual views of Commissioner Cleary). The record in this case establishes that MESA had suspended its enforcement activities with respect to the cited working conditions at the time of the OSHA inspection. Accordingly, it is a fiction for the Commission to conclude that at the time of the September 4, 1975 inspection giving rise to this enforcement action MESA was exercising its authority over the cited working conditions within the meaning of section 4(b)(1). Thus, the administrative law judge correctly ruled that Pennsuco was not entitled to an exemption under section 4(b)(1) of the Act.

II

However, the basic principles of due process dictate against penalizing Pennsuco for failing to comply with OSHA requirements when it did not have notice of an obligation to comply [*24] in the context of overlapping agengy jurisdictions. Paragraph B1 of the Memorandum of Understanding that was published in the Federal Register on July 26, 1974, 39 Fed. Reg. 27382, may have been erroneously construed as conferring exclusive jurisdiction on MESA for employee safety and health in mines and mills, including the kiln process involved in this case, notwithstanding the savings clause contained in paragraph D3 of the Memorandum. n4 Therefore, Pennsuco may not have been adequately informed, and may very well have been misinformed, with respect to its obligations under OSHA by this publication. Accordingly, although at the time of inspection Pennsuco was not exempt under section 4(b)(1) from the requirements of the Act, due process considerations preclude penalizing Pennsuco for the cited violation. Cf. Diebold, Inc. v. OSHRC, supra (application of the regulations in the case at bar would be inappropriate on due process grounds even though the Commission's interpretation of the applicability of the regulations is correct). It is a fundamental principle of due process that statutes which govern conduct must provide adequate notice as to their [*25] requirements. Diebold, Inc. v. OSHRC, supra, citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Although every employer is under a basic duty to ascertain its legal obligations, see Diebold, Inc. v. OSHRC, supra at 1337, the specific facts of this case dictate against concluding that Pennsuco failed to satisfy that duty. MESA's assumption of authority over the cited working conditions was published in the Federal Register; its suspension of enforcement activity was not. MESA did in fact inspect the facility both prior and subsequent to the accident investigation involved in this case. Accordingly, it was reasonable for Pennsuco to conclude that enforcement authority rested with MESA. For this reason the citation is properly vacated in this case. n5

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n4 Paragraph B1 provides: "MESA has enforcement authority for employee safety and health in mines and mills. OSHA has safety and health enforcement authority in processes beyond mines and mills." Appendix A to the Memorandum of Understanding includes kiln treatment as part of the milling process under MESA authority. Paragraph D3 of the Memorandum provides, in pertinent part, "nor shall anything in this agreement be construed as affecting any provision of the Occupational Act."

n5 The statutory reorganization of the Mine Safety and Health Administration into the Department of Labor where OSHA is also located does not necessarily eliminate all problems of overlapping jurisdictions. Different statutory obligations and penalties, compare 29 U.S.C. 666(b), (c) & (e) with 30 U.S.C. 820(a) & (d); 29 U.S.C. 659(b) with 30 U.S.C. 814(h), as well as the different enforcement and adjudicatory procedures, compare 29 U.S.C. 659(a) with 30 U.S.C. 815(a), are established by the respective enabling statutes.

[*26]

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