VEPCO, MOUNT STORM POWER STATION

OSHRC Docket No. 5918-P

Occupational Safety and Health Review Commission

July 1, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Henry K. Osterman dated February 19, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision held that the Commission lacked jurisdiction under 29 U.S.C. 659(c) to hear the issues involved in the case, and dismissed the same. A review of the record in this matter requires an order of dismissal, but for reasons other than those expressed by the Judge below.

Although this case has been treated as a petition for modification of abatement, the record reveals that Vepco never sought relief in that form but that it was placed in that posture involuntarily by overcaution on the part of a representative of the Secretary. n1 Subsequent to the docketing of this case, the company, in a letter to the Commission dated January 18, 1974, denied its status as a petitioner while reserving the right to seek clarification of the occupational safety and health standard found at 29 C.F.R. 1910.93(a)(2) and (e), the substantive regulation at issue in the citation. That letter reads in pertinent part:

On July 5, 1973, the Department [*2] of Labor conducted an inspection at the Virginia Electric and Power Company's plant located at Mount Storm, West Virginia. As a result of that inspection a citation was issued alleging a violation of 29 CFR 1910.93(a)(2) and (e). No penalty was proposed for this alleged violation. However, the Department requested submission of an abatement plan which would protect employees from exposure to dust in various areas of the power station.

Pursuant to this request, the Virginia Electric and Power Company on November 28, 1973, submitted both an administrative and an engineering long term abatement program to the Department of Labor. A copy of that program with covering letter from Mr. Harold Turner, Superintendent of the Mount Storm Power Station is enclosed as Exhibit 1. On page 5 of the plan submitted by the Company it was pointed out to the Department of Labor that the administrative control program developed by the Company achieved full compliance with the above cited regulations. As a result, the Company was of the view that it was not necessary to seek an extension of the abatement period set forth in the charge for completion of the construction work relating to engineering [*3] controls.

It is the position of the Company that Section 1910.93 permits compliance either through "administrative or engineering controls."

The Department of Labor, however, believes that administrative controls are not sufficient wherever engineering controls are feasible. Consequently, it has treated the plan submitted by Vepco as a petition for abatement and has forwarded this plan to the Occupational Safety and Health Review Commission.

While we desire to fully cooperate with the Department, we do not wish to abandon or waive our legal position. The engineering plan, as submitted, involves extensive construction work. Past experience indicates that on such projects delays will frequently be encountered and schedules are difficult to comply with. Consequently, we sought the shortest and most immediate route which would bring full protection to the employees. That protection has been achieved through implementation of the administrative plan. Supervision of the construction work needed to implement engineering changes by the Department is unnecessary and uncalled for by the regulations.

In order to facilitate a complete determination of this issue by the Commission [*4] we have complied with the Commission's notice requirements set forth in the regulations for the processing of abatement requests.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Pursuant to 29 U.S.C. 659, citations issued pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) become enforceable orders if "the employer fails to notify the Secretary" within the time limit specified therein. The Secretary of Labor has promulgated regulations which provide that notices to him under this provision shall be sent to the Area Director of the Department of Labor's Occupational Safety and Health Administration for the particular area where the alleged offense took place. Rules adopted by this Commission provide that each such Area Director shall forward to this Commission all such communications received from cited employers. In this case, the Area Director decided that a letter from the respondent was a petition for modification of the abatement period specified in a citation served upon it and forwarded the same to this Commission which docketed it as such and referred the same to Judge Osterman for disposition.

[*5]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

On January 11, 1974, one week prior to the Commission's receipt of the company's letter supra, the Secretary advised that he had no objection to the company's abatement plan. Subsequent to the issuance of a direction for review of the Judge's decision, he further advised the Commission that he did not intend to file a brief in the matter.

We find it unfortunate that the company has been unnecessarily burdened with litigation arising out or an acceptable plan for compliance, and accepting representations of counsel that the abatement plan submitted to the Department of Labor was never intended to be construed as a petition for modification of abatement, we hereby dismiss. It is so ORDERED.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I do not understand the Secretary's position to be that it has no objection to petitioner's abatement plan as a whole. His response of January 11, 1974 indicates only that he has no objection to the extension of time indicated for final abatement of the violations by engineering controls. n2 Also, that the Secretary has expressed an intention not to [*6] file a brief on review is only a waiver of the right to file a brief. It is obviously not a waiver of opposition to or acceptance of any abatement plan.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The full text of the Secretary's response is as follows:

SECRETARY'S RESPONSE TO PETITIONER'S PETITION FOR MODIFICATION OF ABATEMENT

Respondent, by his counsel, has reviewed petitioner's petition for Modification of Abatement Period, and finds no reason to object to the requested extension.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Judge ruled only on a preliminary jurisdictional question, concluding that respondent, not the Commission, has jurisdiction to decide abatement questions raised after the citations and proposed penalties they are based on have been deemed final orders of the Commission under section 10(a) of the Occupational Safety and Health Act of 1970 (29 CFR 651 et seq., hereinafter "the Act"). That ruling was wrong. H.K. Porter, Inc., No. 1210-P March 22, 1974). The Judge's decision is one of a number of recent instances in which Judges held that the Commission had no [*7] jurisdiction over petitions for modification of abatement periods prescribed in citations that have become final orders of the Commission pursuant to section 10 of the Act. This holding is plainly contrary to rule 34 of the Commission's Rules of Procedre (29 CFR 2200.34, 37 Fed. Reg. 20240 (September 28, 1972)) and long-standing Commission precedent. For examples of such recent cases, see: General Electric Co., No. 3675-P (May 23, 1974) and Akron Selle Co., No. 6423-P (May 24, 1974).

Under the majority's action, no disposition of the issue of abatement by administrative controls rather than engineering controls may be possible until the Secretary reinspects petitioner's workplace. He may propose penalties of as much as $1,000 a day if he finds that abatement has not occurred. Sections 10(b) and 17(d) of the Act.

The case should be disposed of with finality now. Petitioner's long-term abatement plan of November 28, 1973, at various times has been construed as a petition for modification of abatement (hereinafter "PMA") by the Secretary of Labor, the I.B.E.W., System Council U-1, and members of petitioner's management itself. n3 Petitioner, while insisting [*8] it has not presented a PMA, n4 has asked the Commission, by its letter of January 18, 1974 and that of April 19, 1974, to rule on two questions:

(1) Whether the implementation of administrative controls are sufficient to comply with the cited regulation. [If so, then no petition for abatement (sic) need be entertained by the Commission.]

(2) In the event that the Commission's answer to question one is in the negative, whether the schedule for construction set forth in the Company's plan, requiring an extension of the abatement period, should be approved.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 By letters of January 7, 1974, L. W. Pasker, petitioner's personnel manager, informed authorized employee representatives that "since, with the approval of the (Labor) Department, we are seeking an extension of the period provided by the Secretary of Labor for abatement, it is now necessary for the Occupational Safety and Health Review Commission to approve the plan and our request for an extension." The same statement is contained in a letter of the same date from W. C. Daley, petitioner's Manager-Production Operation and Maintenance, to members of the Employees Association. A letter of January 17, 1974 from E. H. Rinaca, petitioner's Director-Production Engineering to Anthony J. Obadal, petitioner's counsel, stated that the intent of the previous letters was to give notice to the authorized employee representatives "of their right to contest extension of the abatement date" of the violation in question.

n4 Petitioner also claims the Commission is without jurisdiction to review the Judge's decision because the Commission's Executive Secretary did not send notice to the parties of the direction for review until after the expiration of the 30-day period prescribed for consideration of Judges' reports under section 12(j) of the Act. This argument must be rejected because of our holding in Gurney Industries, Inc., No. 722 (October 17, 1973). The direction for review was timely received by the Executive Secretary. The Act and the Commission's Rules of Procedure are silent on when notice of a direction shall be given to the parties. A requirement of timely notice is implicit therein, but notice may be given after the end of the 30-day period. Here, notice was given one day after the end of the period, and thus was timely.

[*9]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Thus, petitioner has asked for two types of relief. First, it has asked in effect for a declaratory order on the question of whether or not it is presently in compliance because of the use of administrative controls. Second, in the event of an adverse decision, it asks for an extension or modification of the abatement period. The second request may be fairly characterized as a PMA.

The I.B.E.W., Systems Council U-1 has also asked to be heard on this request, and has a statutory right under section 10(c) to be heard. Even assuming that the Secretary has no objection to the abatement plan of the employer, the employees do object. They must be heard if due process is not to be denied. n5

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 Cf. Gurney Industries, Inc., No. 722 (April 27, 1973).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Commission should determine petitioner's claim that it is already in compliance through administrative controls. Commission adjudications are conducted in accordance with Administrative [*10] Procedure Act, 5 U.S.C. 554. n6 Under section 554(e) the Commission, in its discretion, may issue declaratory orders. Such an order should be used here to eliminate uncertainty and reduce the burden of litigation that is lamented by the majority. A further ruling on petitioner's PMA should then be made, if necessary.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 See section 10(c) of the Act; rule 72 of the Commission's Rules of Procedure.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In conclusion, the Secretary has found that employees are exposed to excessive levels of coal dust. The respondent asserts that he is now in compliance because of administrative controls, and has asked for a ruling on this. The Secretary is said to differ with this assertion, and to consider the timing of engineering controls to be the critical matter. If the Secretary is correct, the employer wants more time to abate by using engineering controls. The employees apparently agree with the Secretary and want to be heard on the abatement issue, if there is to be consideration of any extension in the period [*11] for abatement. A Commission decision on the merits is needed if justice delayed is not to be justice denied.

[The Judge's decision referred to herein follows]

OSTERMAN, JUDGE, OSAHRC: On July 19, 1973 the Secretary of Labor issued a Citation and Notice of Proposed Penalty to Vepco alleging seven(7) non-serious violations and proposing a total penalty of $115.00 for the first three items contained therein. A second Notification of Proposed Penalty purporting to amend the Notification dated July 19th was issued on August 7, 1973. No change in the total penalty was made on August 7th. Neither Vepco nor any employee filed a Notice of Contest and as a consequence the Citation and Notice of Proposed Penalty became the final order of this Commission. On August 2nd, prior to the issuance of the second Notification, Vepco forwarded to the Secretary its check in the amount of $115.00 in full payment of the proposed penalty.

Thereafter negotiations ensued and in accordance with the direction of the Secretary, Vepco submitted a detailed plan for the long term abatement of the violation charged in Item 7 of the Citation. The plan required an extension of the time limit originally [*12] specified in the Citation for complete abatement. On January 14, 1974 the Secretary filed a response to Vepco's plan indicating his approval of the extended abatement period outlined in the said plan. On January 31, 1974 the International Brotherhood of Electrical Workers, appearing for the first time, submitted a letter to the Commission advising that the union opposes the extended abatement date.

Section 10(a) of the Occupational Safety and Health Act of 1970 provides, in effect, that a Citation and Notice of Proposed Penalty becomes the final order of this Commission by operation of law if a Notice of Contest is not filed by either the employer or an employee (or employee representative) within 15 working days after issuance of the Citation or Notice of Proposed Penalty.

In the instant case a Notice of Contest was not filed by either the employer or the union within the time period limited by the statute. The letter of January 31st from the union opposing the modified abatement date was not received until February 1st approximately 5-1/2 months after the issuance of the Amended Notice of Proposed Peanlty. Consequently it appears that this Commission is without power to consider [*13] any aspect of the matter. The union's remedy, if indeed any exists, appears to be an application to the Secretary of Labor for reconsideration of his determination regarding the modified abatement date.