DENKA CHEMICAL CORPORATION

OSHRC Docket No. 80-6199-P

Occupational Safety and Health Review Commission

February 27, 1981

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

William John Bux, for the employer

W. J. Zachary, Chairman, Oil, Chemical & Atomic Workers, Local No. 4-227, for the employees

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Erwin L. Stuller is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Judge Stuller denied the petition of Denka Chemical Corporation ("Denka Chemical" or "the company") for modification of an abatement date. For the following reasons, we set aside the judge's decision and remand the case for further proceedings.

I

On September 30, 1980, Denka Chemical submitted to the Occupational Safety and Health Administration ("OSHA") of the Department of Labor a petition for modification of an abatement date set forth in a settlement agreement between Denka Chemical and the Secretary of Labor ("the Secretary"). n1 The agreement, which was approved by Judge Stuller on September 9, 1980, and became a final order of the Commission on October [*2] 9, 1980, provided that Denka Chemical would abate two items of a citation by October 1, 1980. n2

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n1 Petitions for modification of abatement periods are governed by Commission Rule 34, 29 C.F.R. 2200.34. The employer must file any petition for modification with OSHA. See Rule 34(c), 29 C.F.R. 2200.34(c).

n2 The citation alleged that Denka Chemical failed to comply with 29 C.F.R. 1910.134(b)(11), which requires, in pertinent part, that "[a]pproved or accepted respirators shall be used when they are available."

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Denka Chemical stated in its petition that the company agreed to the October 1, 1980 abatement date on the assumption that the necessary respiratory equipment, 100 approved organic vapor chin-style cannisters, would be readily available from the company's supplier. However, through contacts with the supplier during an approximately one-month period before October 1, 1980, the company found that only 60 cannisters could be supplied. These were delivered, according to the petition, by September 26, [*3] 1980. According to the company, the supplier was able to obtain only 28 cannisters from the manufacturer, obtained the remaining 32 cannisters from other suppliers, and notified Denka Chemical that the remaining 40 cannisters could not be shipped until October 13, 1980. Denka Chemical noted that "there may be additional unforeseen delays." n3

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n3 Commission Rule 34(a), 29 C.F.R. 2200.34(a), provides that an employer may seek modification of an abatement date when it "has made a good faith effort to comply with the abatement requirements" but "such abatement has not been completed because of factors beyond the employer's reasonable control." See section 10(c), 29 U.S.C. 659(c), of the Act.

Commission Rule 34(b), 29 C.F.R. 2200.34(b), requires that the employer include certain information in a petition for modification of an abatement date. The employer must specify (1) the steps taken to comply during the prescribed abatement period, (2) the specific additional abatement time necessary, (3) the specific reasons additional time is necessary ("including the unavailability of professional or technical personnel or of materials and equipment, or because necessary construction or alteration of facilities cannot be completed by the original abatement date") and (4) all available interim steps the employer is taking to protect employees during the abatement period.

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Denka Chemical avowed in its petition that, with the 60 cannisters, the company could "implement its abatement program" by October 1, 1980, but because of the shortage of cannisters the company might be unable to continue the abatement program. Denka Chemical noted that it does not know how long a cannister will last, "[s]ince the cannisters are a new item." The company stated that of the 60 cannisters, 36 cannisters would be given to employees, leaving an inventory of only 24 cannisters, and that until the balance of its order of cannisters is received, the company would use other approved respirators but that its supply of approved respirators is limited. The company further stated that then it would have to resort to using "the cannisters it previously used as an interim protection."

Because the company might be unable to assure continuing abatement after October 1, 1980, and "[t]he company desires to avoid a situation in which OSHA might find a failure to abate or a repeat violation," Denka Chemical requested modification of the abatement date to November 17, 1980. The company stated that this [*5] additional time should be sufficient to obtain the necessary cannisters so that "its abatement program can continue without interruption," and assured that the company would "use its best efforts" to obtain the required equipment as soon as possible.

The authorized representative of affected employees, the Oil, Chemical and Atomic Workers International Union, Local No. 4-227 ("OCAW" or "the Union") submitted to OSHA an objection to the company's petition, n4 stating only that "we are in disagreement with the [petition]." Although the Secretary did not object to Denka Chemical's petition, the Secretary forwarded to the Commission the petition and the Union's objection. n5 The case was assigned to Judge Stuller for a hearing. n6

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n4 Commission Rule 34(c)(2), 29 C.F.R. 2200.34(c)(2), provides that "[a]ffected employees or their representatives may file an objection in writing to [the employer's] petition. . . ."

Commission Rule 34(c)(1), 29 C.F.R. 2200.34(c)(1), requires the employer to post his petition for modification of an abatement date "in a conspicuous place" or "near each location where the violation occurred." In its petition, Denka Chemical stated that it posted the petition where the citation was previously posted and delivered copies of the petition to union representatives.

n5 Commission Rule 34(d), 29 C.F.R. 2200.34(d), provides that if the affected employees or the Secretary object to the employer's petition for modification of an abatement date, the Secretary must forward the petition, citation, and objection to the Commission for adjudication.

n6 Commission Rule 34(d)(3), 29 C.F.R. 2200.34(d)(3), provides that the burden of proof is on the employer in Commission proceedings arising from any objection to the employer's petition for modification of an abatement date.

[*6]

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Judge Stuller scheduled a hearing for November 25, 1980, but on November 19, 1980, he sent to the parties a decision denying the petition and cancelling the hearing. Judge Stuller held that Denka Chemical's petition for modification of the October 1, 1980 abatement date was "moot" because "[t]he filing of this Petition automatically extends the abatement date" and the requested November 17, 1980 abatement date had already passed. n7 Judge Stuller also held that because Denka Chemical stated in its petition that the company had sufficient approved respiratory equipment -- the 60 cannisters -- to begin its abatement program on October 1, 1980, Denka Chemical has conceded that it would be able to meet the abatement requirement of the settlement agreement and therefore had no basis for obtaining an extension of the abatement period. Judge Stuller stated that "[t]he possibility of future violation is too vague and ephemeral to warrant further consideration of the Petition."

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n7 Judge Stuller also stated that although the settlement agreement of the Secretary and Denka Chemical prescribed abatement by October 1, 1980, the "effective abatement date" was October 9, 1980 when the agreement became a Commission final order.

[*7]

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In a motion sent on November 17, 1980, two days before the judge issued his decision, but received by him on November 21, 1980, two days after he issued his decision, Denka Chemical requested that OCAW's objection to the company's petition be dismissed because of OCAW's failure to file a response setting forth the Union's reasons for opposing the company's petition, as required by Commission Rule 34(d)(4). n8 Denka Chemical noted that, in its notice of objection filed with OSHA, the Union gave no reasons for opposing the company's petition, and that the Union's failure to file the response required by Rule 34(d)(4) warranted dismissal of its objection pursuant to Commission Rule 38. n9 Because the Union's purportedly insufficient response was the only objection to the petition, Denka Chemical requested that its petition be granted.

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n8 Commission Rule 34(d)(4), 29 C.F.R. 2200.34(d)(4), requires that "[w]ithin ten (10) working days after the receipt of notice of the docketing by the Commission of any petition for modification of abatement date, each objecting party shall file a response setting forth the reasons for opposing the granting of a modification date. . . ."

n9 Commission Rule 38, 29 C.F.R. 2200.38, provides that the "[f]ailure to file any pleading pursuant to these rules when due, may, in the discretion of the Commission or the Judge, constitute a waiver of the right to further participate in the proceedings."

[*8]

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Denka Chemical's motion was forwarded to the Commission and, deeming it to be a petition for review of Judge Stuller's decision denying the company's petition for modification of the abatement date, Commissioner Barnako directed review on whether the judge erred in denying the petition.

II

We conclude that Judge Stuller improperly dismissed Denka Chemical's petition for modification. Although Denka Chemical asserted in its petition that, with the 60 cannisters, the company could "implement its abatement program" by October 1, 1980, the company detailed the circumstances that could cause the program to fail a short time after its implementation. Section 10(c), 29 U.S.C. 659(c), of the Act permits modification of the abatement requirements upon the employer's showing that "abatement has not been completed because of factors beyond his reasonable control," n10 (emphasis added), and the overriding objective of the Act is to promote effective abatement of unsafe and unhealthful working conditions. n11 Accordingly an abatement program that may be crippled shortly after initiation through equipment [*9] shortages cannot be held to be complete abatement. Therefore Denka Chemical properly sought modification of the abatement date in these circumstances.

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n10 See note 3 supra.

n11 See Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977); Marshall v. Western Elec., Inc., 565 F.2d 240 (2nd Cir. 1977).

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Judge Stuller moreover erroneously concluded that Denka Chemical's petition for modification of the October 1, 1980 abatement date was moot because of the passage of the requested November 17, 1980 date. As we stated in Gilbert Manufacturing Co., 79 OSAHRC 68/A2, 7 BNA OSHC 1611, 1979 CCH OSHD P23,782 (No. 76-4719, 1979), the filing of a petition for modification of an abatement date does not toll the currently effective abatement requirement. Accordingly Denka Chemical was required to complete abatement by October 1, 1980 n12 despite its request for an extension of the abatement period. If the Commission should determine that the request was unjustified, the company could receive a notification of failure [*10] to abate or a citation for repeated violation based on the period from October 1, 1980 to the time of abatement. n13

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n12 Judge Stuller incorrectly stated that October 9, 1980 was the "effective abatement date." Because Denka Chemical agreed in the settlement agreement to abate by October 1, 1980, the company's abatement obligations began to run from that date. The date on which the judge's decision approving the settlement agreement became a final order of the Commission is simply the date on which the abatement requirement of the agreement became enforceable by the Secretary. Thus, if the Secretary issued a notification of failure to abate, he could propose and the Commission could assess a penalty of up to $1000 per day for each day following October 1, 1980 that the conditions remained unabated. See 17(d) of the Act, 29 U.S.C. 666(d).

n13 See note 12 supra.

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Denka Chemical should therefore be afforded an opportunity for a hearing on its petition to which the Union has objected. As Denka Chemical [*11] sets forth in its motion to dismiss the Union's notice of objection, the Union has filed only a general objection and has not filed a response pursuant to Commission Rule 34(d)(4) n14 setting forth its reasons for objecting to the petition. Because the company's motion to dismiss was received after Judge Stuller had issued his decision in this case, Judge Stuller has not considered the motion. Moreover, the Union has not yet been given a clear opportunity to respond to the motion since the case was dismissed before the Union received notice of the company's motion and the notice accompanying the direction for review which was based on the motion specified that no briefs were to be filed. Accordingly we remand the case to Judge Stuller for further proceedings consistent with this decision including proceedings and a ruling on Denka Chemical's motion.

SO ORDERED.

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n14 See note 8 supra.

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