ST. REGIS PAPER COMPANY
OSHRC Docket No. 4183-P
Occupational Safety and Health Review Commission
January 22, 1975
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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
� CLEARY, COMMISSIONER: On November 8, 1974, Judge David J. Knight issued an order granting a petition for modification of abatement extending final atatement of certain noise hazards to March 1, 1983.
On December 9, 1974, review was directed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. � � 651 et seq. ) in order to determine whether notice of the Secretary's response to the petition was accorded affected employees and authorized employee representatives. � A statement of such notice having been received on December 23, 1974, the Judge's decision is affirmed.
The concurring opinion misses the point in observing that the employees were notified of the filing of the petition for modifying the abatement period and from this concluding that the case did not require our review. � The point is that, until the recent filing of a statement of service, there was nothing in the record showing that the employee representatives had been notified of the response of the Secretary of Labor indicating no objection to the extension of the time for abatement of the noise [*2] � violation involved until March 1, 1983. A very long extension of time! It was thus unclear that the affected employees were notified of the Secretary's wish to dispose of the controversy by consent. � The Secretary's Certificate of Service showed service only upon the petitioner.
Since the affected employees (or other representatives) had a statutory right to be parties, n1 they had a right to be treated as parties for the purposes of the Administrative Procedure Act, and have an opportunity to participate in any consensual disposition to the extent that they may be interested in doing so. � If � there had been no notice of the Secretary's position, the affected employees would have been denied this right.
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n1 See section 10(c) of the Act and 29 CFR 2200.20.
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So ORDERED. �
CONCURBY: VAN NAMEE
CONCUR:
� VAN NAMEE, COMMISSIONER, concurring: I concur in the disposition. � In my view this case did not require review. � The record indicated that employees had been notified of the petition, and Judge Knight's opinion stated [*3] � that fact. � Accordingly, affected employees were given the opportunity to participate, and therefore the requirements of section 10(c) of the Act were satisfied. � My colleagues comments to the contrary represent nothing more than an attempt to have a minority view prevail. � I repeat, in my view this case did not require review.
[The Judge's decision referred to herein follows]
KNIGHT, JUDGE: St Regis Paper Company of Bucksport, Maine, by petition dated July 16, 1974, seeks an extension of time to March 1, 1983, to abate a violation of 29 C.F.R. � � 1910.95(b)(1) which regulates the exposure of employees to maximum noise levels. � Petitioner was cited on August 4, 1972, for an alleged violation of this standard and did not contest. � It was to abate the violation by August 6, 1973; but by order dated September 20, 1973, it was granted an extension to August 6, 1974. n1
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n1 The petition which resulted in the order of September 20, 1973, requested a five-year extension. � The Secretary of Labor agreed to a one-year extension. � The order of September 20 simply grants the petition without resolving the question of how long the extension was to be. � But Petitioner appears to have accepted the interpretation of the Regional Solicitor, upon advice from the Commission, that only a one-year extension was intended to be granted. � See letter by Regional Solicitor to Petitioner dated October 26, 1973.
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The petition and its attachments of July 16, 1974, sets out in detail the program designed to bring Petitioner into compliance. � The response of the Secretary of Labor, filed August 6, 1974, offers no objection to the petition and states that Petitioner had made a good faith attempt to comply but has been unable to because of factors beyond its reasonable control.
� There being no controversy n2 concerning the statutory requirements necessary for a favorable decision on the request [29 U.S.C. � � 659(c)], it is ordered that the petition of St. Regis Paper Company dated July 16, 1974, to extend the period to abate the violation of 29 C.F.R. � � 1910.95(b)(1) from August 6, 1974, to March 1, 1983, is granted upon the terms, conditions and timetable (Hazard Profile Study attached to petition) set forth in the petition.
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n2 No employee representative has come forward. � On August 9, 1974, four unions were served with the petition according to a certificate by petitioner.
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