AMOCO CHEMICALS CORPORATION

OSHRC Docket No. 79-4874-P

Occupational Safety and Health Review Commission

February 21, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, USDOL

Robert H. Buckler, for the employer

Dale F. Casseday, President, Local 8-732 - Oil, Chemical and Atomic Workers International Union, 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, hereinafter "the Act." A decision of Administrative Law Judge Henry K. Osterman is before the Commission for review pursuant to section 12(j) of the Act, 29 U.S.C. §   661(i).   The issue is whether Judge Osterman erred in granting a petition for modification of abatement filed by petitioner, Amoco Chemicals Corporation, on the ground that there was no objection to the petition by either the Secretary of Labor or the affected employees. We conclude that the judge erred, and remand for further proceedings.

On August 24, 1977, the Secretary issued a citation to Amoco Chemicals charging the company with violating the Act by failing to comply with the noise standard at 29 C.F.R. §   1910.95(b)(1).   The citation specified a final abatement date of August 23, 1978.   [*2]   Amoco Chemicals did not contest the citation, which thereby became a final order pursuant to section 10(a) of the Act, 29 U.S.C. §   659(a). n1 At Amoco Chemicals' request, the Secretary approved an extension of the abatement date to August 23, 1979.

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n1 Section 10(a) provides, in pertinent part:

. . . If, within fifteen working days from the receipt of the notice (of proposed penalty) issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, . . . the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

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On August 23, 1979, Amoco Chemicals requested of the Secretary a further extension of the abatement date until February 23, 1980.   The Secretary transmitted this request to the Commission pursuant to Rule 34 of the Commission's rules of procedure, 29 C.F.R. §   2200.34. n2 At the same time, the Secretary requested an extension of 45 days to respond   [*3]   to the petition, stating:

In order to make an accurate decision with regard to concurring in or objecting to the requested extension, it will be necessary for Respondent to evaluate the state of the art of noise control techniques as applied to Petitioner's chemical plant operations and to assess and define Petitioner's efforts at compliance.

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n2 Rule 34 permits the Secretary to approve a petition for modification of the abatement period if there is no objection to the petition by the affected employees. If either the Secretary or the affected employees object, the Secretary must transmit the petition and the objections to the Commission.   The Commission then affords the parties an opportunity for a hearing on the objections.   The entire rule is quoted in the text, infra.

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On October 5, 1979, the Secretary filed his response to the petition, stating that he did not have sufficient data upon which to object or concur in the petition, and requesting that the matter be set for hearing.   The judge construed this response [*4]   as evidencing the Secretary's lack of objection to the petition.   He therefore held that a hearing on the petition was not required, relying on the fact that our Rule 34 only provides for a hearing "(w)here any petition is objected to by the Secretary or affected employees." 29 C.F.R. §   2200.34(d).   Accordingly, the judge granted the petition.   The Secretary petitioned for review of the judge's ruling by the full Commission, and review was directed by Chairman Cleary.

On review, the Secretary contends that his response to the petition for modification of abatement should not be construed as a lack of objection.   The Secretary continues to assert that he wants a hearing on the petition, and asks that the judge's decision be reversed and the case remanded.

We agree with the Secretary that the judge misinterpreted the Secretary's response.   Our reasons for reaching this conclusion require an examination of the provisions of Rule 34.   This Rule is set out below in its entirety:

2200.34 PETITIONS FOR MODIFICATION OF ABATEMENT

(a) An employer may file a petition for modification of abatement date when such employer has made a good faith effort to comply with the abatement requirements [*5]   of a citation, but such abatement has not been completed because of factors beyond the employer's reasonable control.

(b) A petition for modification of abatement date shall be in writing and shall include the following information:

(1) All steps taken by the employer, and the dates of such action, in an effort to achieve compliance during the prescribed abatement period.

(2) The specific additional abatement time necessary in order to achieve compliance.

(3) The reasons such 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.

(4) All available interim steps being taken to safeguard the employees against the cited hazard during the abatement period.

(c) A petition for modification of abatement date shall be filed with the Area Director of the United States Department of Labor who issued the citation no later than the close of the next working day following the date on which abatement was originally required.   A later-filed petition shall be accompanied by the employer's statement of exceptional [*6]   circumstances explaining the delay.

(1) A copy of such petition shall be posted in a conspicuous place where all affected employees will have notice thereof or near each location where the violation occurred.   The petition shall remain posted for a period of ten (10) days.

(2) Affected employees or their representatives may file an objection in writing to such petition with the aforesaid Area Director.   Failure to file such objection within ten (10) working days of the date of posting of such petition shall constitute a waiver of any further right to object to said petition.

(3) The Secretary or his duly authorized agent shall have the authority to approve any petition for modification of abatement date filed pursuant to subparagraphs (b) and (c).   Such uncontested petitions shall become final orders pursuant to sections 10(a) and (c) of the Act.

(4) The Secretary or his authorized representative shall not exercise his approval power until the expiration of fifteen (15) working days from the date the petition was posted pursuant to paragraphs (c)(1) and (2) by the employer.

(d) Where any petition is objected to by the Secretary or affected employees, such petition shall be processed [*7]   as follows:

(1) The petition, citation and any objections shall be forwarded to the Commission within three (3) working days after the expiration of the fifteen (15) day period set out in paragraph (c)(4).

(2) The Commission shall docket and process such petitions as expedited proceedings as provided for in §   2200.101 of this Part.

(3) An employer petitioning for a modification of abatement period shall have the burden of proving in accordance with the requirements of 29 U.S.C. §   659(c), that such employer has made a good faith effort to comply with the abatement requirements of the citation and that abatement has not been completed because of factors beyond the employer's control.

(4) Within 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 greenting or a modification date different from that requested in the petition.

The various provisions of Rule 34 are intended to provide an expeditious method of processing petitions for modification of abatement, and must be construed to effectuate that purpose.   When [*8]   an employer petitions under Rule 34, the employer is seeking relief from an abatement date contained in a Commission final order. Section 10(c) of the Act, 29 U.S.C. §   659(c), provides for such relief "(u)pon a showing by an employer of a good faith effort to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control." Thus, the burden of justifying the extension rests with the employer, and Rule 34 reflects this assignment of the burden of proof.   29 C.F.R. §   2200.34(d)(3).   Moreover, the petition itself must assert the justification for the requested extension.   29 C.F.R. §   2200.34(b).

If the Secretary is satisfied that the petition is justified, and if the affected employees do not object, the Secretary may summarily approve the petition.   29 C.F.R. § §   2200.34(c)(3) and (4).   If either the Secretary or the affected employees object, the Secretary must transmit the petition to the Commission, which will afford the parties an opportunity for a hearing.   29 C.F.R. §   2200.34(d).   If this occurs, each objecting party must file a response stating its reasons for opposing the petition.   29 C.F.R. §   [*9]   2200.34(d)(4).

In some cases, the Secretary will not be able to determine whether the request for extension of the abatement date is justified.   It would be improper for the Secretary to approve such a petition, for granting an abatement extension that may be unjustified is inconsistent with the Act's purpose to secure rapid abatement of hazards. See Gilbert Manufacturing Co., 79 OSAHRC    , 7 BNA OSHC 1611, 1613, 1979 CCH OSHD P23,782 at p. 28,846 (No. 76-4719, 1979).   Thus, the Secretary's proper course is to do as he did here and transmit the petition to the Commission, noting that he does not have sufficient information to determine whether the petition is justified.   Such a course of action does not indicate the Secretary's lack of objection, but merely that the Secretary seeks a hearing at which the employer must justify the extension.

The requirement of Rule 34 that each objecting party file its objections to the petition, 29 C.F.R. §   2200.34(d)(4), does not require a different conclusion.   Commission proceedings on petitions for modification of abatement are expedited. 29 C.F.R. §   2200.34(d)(2).   Partly for this reason, the Commission does not require formal [*10]   pleadings in such cases.   Instead, the petition itself and responses pursuant to section 2200.34(d)(4) serve to aid expeditious resolution of the petition by clarifying the issues in dispute between the parties.   As in any dispute, however, the responding party may not have sufficient information to respond to the assertions in the petition.   When, as here, that is the case, the response need only note that position.   The petitioner then knows that it must be prepared to prove at the hearing all material assertions of fact in its petition.

We therefore conclude that the Secretary has properly objected to Amoco Chemicals' petition, and that the case must be remanded for a hearing.

We also note that Local 8-732 of the Oil, Chemical and Atomic Workers International Union has filed an objection to the petition.   The Secretary transmitted the Union's objection separately from his own, and the Union's objection was therefore inadvertently treated as a separate case by the Commission and assigned Docket Number 79-5483-P.   That case was assigned to Judge Osterman after he had issued his decision in this case.   Because he had already granted the petition in this case, Judge Osterman dismissed [*11]   Docket Number 79-5483-P as being duplicative.   The Union's objection should not have been separately docketed, but should have been considered together with the Secretary's objection.   Accordingly, the Union is hereby added as a party to this case.   The Commission will transfer the Union's objection from the file in Docket Number 79-5483-P to the official file in this case.   On remand, the judge is to hear both the Union's and the Secretary's objections to the petition.

Accordingly, the judge's order is set aside and the case is remanded for further proceedings.