“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78?4923 \u00a0 ?J.L. MANTA PLANT SERVICES COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 November 3, 1982DECISIONBefore: ROWLAND, Chairman; CLEARY and COTTINE,Commissioners.BY THE COMMISSION:??????????? TheSecretary of Labor (?the Secretary?) issued to J.L. Manta Plant ServicesCompany (?Manta?) two citations alleging that Manta had violated several partsof the coke oven emissions standard at 29 C.F.R. ? 1910.1029 including section1910.1029(c), which regulates employee exposure to coke oven emissions, andsection 1910.1029(g)(3), which requires a respiratory protection program.[1]??????????? Beforethe hearing, Manta moved to vacate both citations on the ground that section1910.1029 could not be validly applied to non-coke oven employees. Judge LouisJ. Rubin granted Manta?s motion and vacated the citations.[2] In his petition forreview, the Secretary sought review of the judge?s decision. In the lastparagraph in his petition, the Secretary also moved to amend in the alternativeto allege violations of the general industry standards at sections1910.1000(a)(2) and (e), which regulate employee exposure to coal tar pitchvolatiles (?CTPV?). The motion was evidently made under Federal Rule of CivilProcedure 15(a).[3]Commissioner Cleary directed the case for review on the following issues:??????????? [1]In light of American Iron and SteelInstitute, 577 F.2d 825 (3d Cir. 1978), did the administrative law judgeproperly vacate the citation alleging a violation of the coke oven emissionsstandard, 29 C.F.R. ? 1910.1029???????????? ?[2] Whether ? 9(c) of the Act precludesamendment of the citation to 29 C.F.R. ??\u00a01910.1000(a)(2) and (e)???????????? Thefirst of these issues is no longer before us. In the Secretary?s brief beforethe Commission, the Secretary abandoned his argument that the judge erred inholding that section 1910.1029 could not be validly applied to Manta. He alsochanged his position on the amendment issue. Although stating that he waswithdrawing one of the two citations, the Secretary asked to amend the othercitation. However, he did not ask to amend to the general industry standardsmentioned in his petition for review. Instead, he asked that the citation beamended under Federal Rule 15(a) to allege violations of the constructionindustry standards at sections 1926.55(a) (CTPV standard), 1926.103(c)(1)(instruction on the use and care of respirators) and 1926.21(b)(2) (instructionon avoidance of unsafe conditions and applicable regulations), and the generalindustry standards at 1910.134(b)(1) (written standard operating procedures forselection and use of respirators) and 1910.134(b)(6) (storage of respirators ina convenient, clean, and sanitary location). The Secretary explained in afootnote in his brief that ?[a]fter further evaluation the Secretary hasdetermined that Part 1926 (construction) standards are more properly cited in[this case] because [Manta] was engaged in construction, repair and maintenancework . . ..???????????? Wedeny the motion to amend. The Secretary did not request amendment under FederalRule 15(a) before the judge. Indeed, the motion to amend now before us was notmade until the Secretary filed his brief on review; as we have noted, theSecretary?s petition first sought amendment to different standards. UnderCommission Rule of Procedure 92(d), 29 C.F.R. ?\u00a02200.92(d),[4] the Commission ordinarilyreviews only those issues that have been raised before the administrative lawjudge. See Willamette Iron & Steel Co.,81 OSAHRC 59\/A2, 9 BNA OSHC 1900, 1904, 1981 CCH OSHD ?25,427, p. 31,699 (No.76?1201, 1981). This common rule of orderly procedure embodies the view that itis sounder practice to not pass on issues that the hearing judge has not had anopportunity to consider unless there are extraordinary circumstances.Similarly, courts have held that where a party had an opportunity to move toamend under Federal Rule 15(a) before an appeal and did not, the motion comestoo late. See Swan v. Board of Education,319 F.2d 56, 61 (2d Cir. 1963).??????????? Thereare no circumstances here excusing the Secretary?s failure to move to amendbefore the judge. Employers have often filed pre-hearing motions to vacatecitations because the cited standard is invalid or inapplicable. The ordinarycourse is for the Secretary to then move to amend his citation to alternativelyallege violations of other arguably applicable standards. The Secretary notonly had the opportunity to so amend, he did not do so even though theconstruction standard at section 1926.55 would have been at least arguablyapplicable to construction contractors if the judge were to find that section1910.1029 could not be validly applied. The record supplies no reason whycounsel for the Secretary could not have foreseen that the judge might havedisagreed with his validity argument, and taken the elementary step of movingbefore Judge Rubin to alternatively amend to the construction standard.[5]??????????? Inshort, the Secretary had an opportunity to raise the amendment issue before thejudge and did not do so. Inasmuch as he has not shown any circumstancesexcusing this failure, we deny the motion to amend.[6] The judge?s decision isaffirmed.?SO ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: NOV 3, 1982\u00a0COTTINE, Commissioner, dissenting:??????????? Themajority narrowly construes Commission Rule of Procedure 92(d) which was meantto encourage orderly procedure and yet not unnecessarily foreclose a decisionon the merits. Rather than precipitously dismissing this case, I would remandto the judge to consider whether the second motion to amend should be granted.[7]??????????? UnderCommission Rule of Procedure 92(d), review is ordinarily limited to issuesraised before the administrative law judge. However, this case has onlyprogressed to pre-hearing motions before the judge. In fact, this case was inthe early stages of preparation for the hearing when the citations were vacatedon a pre-hearing motion. Although the Secretary had an opportunity toalternatively amend to section 1926.55 at that early stage, the parties?attention was then focused on the larger issue of whether the new coke ovenstandard applied to non-coke oven employees. Under these circumstances, theSecretary?s failure to move to amend was not so egregious as to warrantdismissal.[8]??????????? Themajority?s mechanical invocation of Commission Rule 92(d) is particularlyunfortunate here. Federal Rule of Civil Procedure 15(a) states, among otherthings, that ?leave [to amend] shall be freely given when justice so requires.?The Supreme Court has construed this clear language as allowing liberalamendments, even after a complaint has been dismissed, so that the parties aregiven an opportunity to have their claims decided on the merits. See Foman v. Davis, 371 U.S. 178, 182(1962). It is in this light that Commission Rule 92(d) should be applied here.??????????? Accordingly,I would remand this case for consideration of whether the second motion toamend should be granted. Manta claims that its new officers and directors didnot have knowledge of the corporation?s activities at the time of the allegedviolations and would have to rely on records which do not contain informationon the amended citation. The judge is in a better position to resolve thesefactual matters and determine whether amendment would be proper.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78?4731 OSHRC DOCKET NO. 78?4923 OSHRC DOCKET NO. 78?5043 OSHRC DOCKET NO. 78?5051 OSHRC DOCKET NO. 78?5060 \u00a0 FURNCO CONSTRUCTION CO. J. L. MANTA INC. GENERAL DRAINAGE, INC. M & O INSULATION COMPANY MCAULIFFE MECHANICAL CONTRACTORS RESPONDENT \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 December 7, 1979ORDER ON MOTION TO DISMISS??????????? Respondent?sMotion to Dismiss citations issued under the coke oven emissions standards (29CFR 1910.1029) is granted.??????????? Thechronology and factual background is briefly summarized, setting forth factsnot in dispute and stipulated by the parties:??????????? 1. OnOctober 19, 1976, the Secretary of Labor promulgated a new health standardgoverning employee exposure to coke oven emissions (29 CFR 1910.1029).??????????? 2.Petitions for review were filed by several coke producers and their tradeassociations with the United States Court of Appeals for the Third Circuit. TheCourt issued its opinion and order on March 28, 1978, American Iron and Steel Institute, et al. v Occupational Safety andHealth Administration, 577 F.2d 825 (3rd Cir. 1978) which held in pertinentpart, ?the Secretary?s coke oven emissions standard (is) affirmed except: . . .(3), application of the standard to non-coke oven employers.? The courtremanded the case for further proceedings consistent with its opinion as to theapplication of the standard to non-coke oven employers.??????????? 3.Respondents are non-coke oven employers who were engaged in construction andmaintenance services, as independent contractors, at the Inland Steel plant,East Chicago, Indiana, in August 1978.??????????? 4.They were cited in September and October 1978, for violation of the standard.??????????? 5. InDecember 1978, OSHA issued a ?Supplemental Statement of Reasons? which states,?This notice delineating the precise application of the standard to non-cokeproducing employers is in response to the remand ordered by the Court.???????????? 6. OnJanuary 12, 1979, OSHA published a notice in the Federal Register at page 2725stating that the Advisory Committee on Construction Safety and Health,(Advisory Committee) would meet on January 31 and February 1, 1979 to considerthe application of the coke oven standard to non-coke oven employers. TheSupplemental Statement was then presented to the Advisory Committee.??????????? 7.The Advisory Committee met on May 17, 1979, pursuant to a notice in the FederalRegister on April 27, 1979, and formulated its recommendations. The AdvisoryCommittee accepted OSHA?s determination that the scope and application of thestandard, (29 CFR 1910.1029) (a)) applied to all employers. Some disagreementwas expressed with parts of the Supplemental Statement. The areas ofdisagreement have no direct bearing on the issue raised here.??????????? Complainant?sposition is that the order of remand did not stay enforcement proceedingsagainst non-coke oven employers. Consistent with its position, the Secretarydid not institute any rule making proceeding. Instead, a ?SupplementalStatement of Reasons? was drafted for public consideration for the purpose ofinforming the Court of the precise application of the standard to independentcontractors.??????????? Respondentsmaintain that the citations were issued in violation of the Court order and areinvalid. Respondents argue that the Court was concerned with due process rightsto notice and they were not afforded such notice. Respondents were cited in theinterim period between the Court order and publication in the Federal Registerof the ?Supplemental Statement of Reasons.???????????? TheCourt?s opinion, section VI, deals with the application of the standard tonon-coke oven employers. The Court recites the arguments favoring theSecretary?s position; announces its conclusion.??????????? Thecase law submitted by the parties in support of their interpretations of theopinion and order is inconclusive. The decision cited do not involve notice ofrule making, or the court specifically vacated or remanded with specificinstructions for proceeding, or specifically ruled that the challenge should bepursued in an enforcement proceeding. However, I find respondent?s argument andanalogy to the Review Commission decision, in American Urethane Corp., 5 BNA OSHC 1543, 1977?78 CCH OSHD para.21, 903 (1977) to be persuasive. In AmericanUrethane Corp., the Review Commission interpreted the Third Circuit opinionin Synthetic Organic Chemical Mfrs. Ass?n(SOCMA II), 506 F.2d 385 (3rd Cir. 1974) cert. denied 423 U.S. 830 (1975). The Review Commission held that aCourt order of remand does not stay enforcement proceedings where the basis forthe remand is the Court?s desire to ascertain the reasons for the agencyaction. In contrast, when the basis for remand is failure to afford adequatenotice, remand was predicated on the conclusion that the promulgation did notmeet the requirements of section 6 of the Act and necessitates vacation of therelevant provisions. This conclusion is in accord with the view that anadministrative rule not promulgated in accordance with the notice requirementsof section 553 of the Administrative Procedure Act is not enforceable. N.L.R.B. v. Wyman-Gordon Company, 394 U.S. 759 (1969); Wagner Electric Corp. vVolpe, 446 F.2d 1013 (3rd Cir. 1972); Texaco, Inc. v Federal PowerCommission, 412 F.2d 740 (3rd Cir. 1969).??????????? TheCourt has ruled that respondents did not receive adequate notice. Proceedings,in accordance with the Court order of remand, were not held prior to theissuance of the citations. The defect in promulgation precludes enforcement ofthe standard against respondents in this case. It is noted that the same issuewas before Judge Sparks, Review Commission Judge, in C. H. Heist Corporation et al. (OSHRC Nos. 79?0749 et al., decidedNovember 16, 1979). Judge Sparks held that lack of notice was a fundamental defectand that the standard should not be enforced until the defect has beenremedied.??????????? It isORDERED:??????????? 1.The citations alleging violations of 29 CFR 1910.1029 are vacated.??????????? 2.General Drainage, Inc., No. 78?5043; M & O Insulation Company, No. 78?5051;and McAuliffe Mechanical Contractors, No. 78?5060 will be notified of thehearing date with respect to those items cited under standards other than 29CFR 1910.1029.??????????? 3.This constitutes a final order with respect to Furnco Construction Co., No.78?4731; and J. L. Manta, Inc., No. 78?4923.?Louis J. RubinJudge, OSHRCDated: December 7, 1979\u00a0\u00a0[1] This case wasconsolidated before the judge with four other cases: Nos. 78?4731, 78?5043,78?5051 and 78?5060. The Secretary petitioned for review of the Manta case and Furnco Construction Co., No. 78?4731. Commission review wasgranted. Later, the Commission approved a settlement agreement in Furnco and granted the parties? jointmotion to sever Furnco from thiscase.[2] The judge reliedon American Iron & Steel Institute v.OSHA, 577 F.2d 825 (3d Cir. 1978). In that case, the court remanded section1910.1029 to the Secretary for further proceedings as to whether the standardapplied to non-coke oven employees. We have been unable to find any subsequentrulemaking actions by the Secretary that would have cured the problem that hasmade the standard unenforceable as to non-coke over employees such as Manta?s.[3] Rule 15. Amendedand Supplemental Pleadings.(a) Amendments.[A] party may amend his pleadings only byleave of court or by written consent of the adverse party; and leave shall befreely given when justice so requires.[4] Rule 92 Review bythe Commission.(d) . . . Except in extraordinarycircumstances, the Commission?s power to review is limited to issues of law orfact raised by the parties in the proceedings below.[5] This lack offoresight was particularly inexplicable here because the possible applicationof section 1926.55 has figured prominently in coke oven litigation involvingconstruction contractors. The United States Court of Appeals for the ThirdCircuit had remanded section 1910.1029 as to construction contractors becausethe court had ?serious reservations concerning the broad construction of thestandard?s applicability to independent contractors contained in? a March 3,1977, letter by Bert Concklin, then Acting Assistant Secretary of Labor forOccupational Safety and Health. AmericanIron & Steel Institute v. OSHA, 577 F.2d 825, 840 (3d Cir. 1978). Inthat letter, a request by the National Erectors Association for a stay ofsection 1910.1029 as to construction contractors and interim enforcement of theconstruction standard at section 1926.55 was rejected by Mr. Concklin on thesole ground that there was no applicable construction standard.Thispoint also appeared in the background of this case. The Secretary had appendedthe Concklin letter to his brief before Judge Rubin. In addition, both partiesto this litigation had included in their stipulation of facts an unpublishedsupplemental statement by the Labor Department of reasons for the applicabilityof section 1910.1029. Like the Concklin letter, this supplemental statementdeclared that ?the construction standards do not deal with the health hazard ofcarcinogenic coke oven emissions . . ..? Yet, now the Secretary evidentlythinks otherwise. The Labor Department?s failure to follow a consistent courseon this question unnecessarily delayed the final disposition of this case andprevented an orderly resolution of the merits.[6] Because we denythe motion on this ground, we need not consider whether the Secretary?s motionshould be denied because it raises issues different from those in the petition.See Commission Rule 92(c), 29 C.F.R.? 2200.92(c).[7] I do not agreewith the intimation in the majority opinion that the amendment issue might notproperly be on review under Commission Rule 92(c). The rule states in part that?review shall be limited to the issues specified in the petition . . ..?Although the majority does not mention it, ??\u00a01926.55 and 1910.1000 haveprecisely the same threshold limit values for CTPV and require the sameabatement methods. The Secretary?s motions to amend to the general industrystandard and to the precisely equivalent construction industry standard do notpresent different issues that would frustrate Commissioner Cleary?s exercise ofdiscretion in directing review on whether section 9(c) of the Act precludesamendment to the general industry standard and implicitly whether amendment isproper under Fed. R. Civ. P. 15(a).[8] In note 5 of thelead opinion, the majority maintains that the Secretary?s failure to move toamend was ?inexplicable? because the applicability of ? 1926.55 had ?figuredprominently in coke oven litigation? and had ?appeared in the background ofthis case.? The Secretary?s actions are inexplicable to my colleagues becausethey mischaracterize the role that ? 1926.55 has played here. The applicabilityof ? 1926.55 did not occur to either party when this case was before the judge.The papers relied on by the majority were introduced as mere background toanother issue. To magnify their significance now is inappropriate.Themajority?s conclusion that the Secretary?s positions have been inconsistent isalso incorrect. The Secretary?s statements that ? 1926.55 was inapplicablereflected nothing more than his completely plausible view that because the newcoke standard comprehensively addressed the matter of coke ovens, the oldconstruction standard had been pre-empted to that extent. This reasoning shouldbe familiar to the majority. See, e.g.,John T. Brady & Co., 82 OSAHRC 9\/D10, 10 BNA OSHC 1385, 1982 CCH OSHD?25,941 (No. 76?2894, 1982), rev?d,No. 82?4082 (2d Cir. October 14, 1982). It was only when Judge Rubin held thatthe new standard could not be validly applied that the Secretary sought toapply the old standard. There is no inconsistency in that.”