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OSHA

  • David P. Currie

Extract

The Occupational Safety and Health Act of 1970 was a far-reaching effort to reduce the pervasive dangers of the work environment. It was also in several respects a novel experiment in regulation. The accumulation of five years' experience under the statute affords an opportunity for reexamination of its provisions in the light of numerous judicial decisions.

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1 29 U.S.C. sec. 651-78 (1970).

2 Sec. 6, 29 U.S.C. sec. 655 (1970).

3 Secs. 6(b)(6), (d), 16, 29 U.S.C. secs. 655(b)(6), (d), 665 (1970).

4 Sec. 5, 29 U.S.C. sec. 654 (1970).

5 Sec. 17, 29 U.S.C. sec. 666 (1970).

6 Secs. 9, 10, 29 U.S.C. secs. 658, 659 (1970).

7 Sec. 11, 29 U.S.C. sec. 660 (1970).

8 Sec. 3(4), (5), 29 U.S.C. sec. 652(4), (5) (1970).

9 The District of Columbia, Puerto Rico, and certain territories are included in the definition of “State.” See Caribtow Corp. v. OSHRC, 493 F.2d 1064 (1st Cir. 1974), upholding the application of the Act in Puerto Rico. The Puerto Rican Compact, 48 U.S.C. sec. 734 (1970), expressly preserves the applicability of federal statutes in the Commonwealth; the court relied on both the commerce and territorial powers in upholding Congress's authority.

10 29 U.S.C. sec 142(1) (1970); see NLRB v. Fainblatt, 306 U.S. 601, 604-5 (1939).

11 116 Cong. Rec. 42199, 42206 (1970).

12 United States v. Dye Constr. Co., 510 F.2d 78, 83 (10th Cir. 1975).

13 Brennan v. OSHRC (John J. Gordon Co.), 492 F.2d 1027, 1029-30, 1032 (2d Cir. 1974).

14 For a most recent example under the Sherman Act see Hospital Building Co. v. Trustees of Rex Hospital, 96 S. Ct. 1848 (1976).

15 Cf. the American Law Institute's proposals for revision of federal-court jurisdiction, which would limit invocation of diversity jurisdiction by an entity “organized or operated primarily for the purpose of conducting a trade, investment, or other business enterprise” in a state where it has a “local establishment.” The commentary explains this definition excludes “charitable, religious, or educational institutions,. labor unions and fraternal societies”—even though one might have thought education could be a business unless given away free. ALI, Study of the Division of Jurisdiction Between State and Federal Courts, pt. I, 71-74 (Philadelphia: Official Draft 1965).

16 Sec. 3(5), 29 U.S.C. sec. 652(5) (1970).

17 Maryland v. Wirtz, 392 U.S. 183, 184, 198-99 (1968).

18 Fry v. United States, 95 S. Ct. 1792 (1975).

19 Clean Air Act secs. 118, 302(e), 42 U.S.C. secs. 1857f, 1857h(e) (1970); Water Pollution Control Act secs. 313, 502(5), 33 U.S.C. secs. 1323, 1402(e) (Supp. IV, 1974).

20 National League of Cities v. Usery, 96 S. Ct. 2465 (1976).

21 Sec. 19, 29 U.S.C. sec. 668 (1970).

22 Sec. 110, 42 U.S.C. sec. 1857c-5 (1970).

23 Sec. 402, 33 U.S.C. sec. 1342 (Supp. IV, 1974).

24 Sec. 18, 29 U.S.C. sec. 667 (1970).

25 The state plan must provide for standards “relating to one or more safety or health issues,” sec. 18(c)(2), and upon final plan approval federal standards are inapplicable “with respect to any occupational safety or health issues covered under the plan,” sec. 18(e). See S. Rep. No. 91-1282, 91st Cong., 2d Sess. 18 (1970), 3 U.S. Code Cong. & Admin. News 5177, 5195 (1970): “[A] State's program need not be all-encompassing; it may restrict itself to a particular hazard or industry. However, industries or hazards not covered by the plan will continue to be under Federal jurisdiction.”

26 AFL-CIO v. Brennan, 2 OSHC 1654 (D.D.C. 1975), appeal pending, see 6 OSH Rep. 40 (1976), where the court rejected an argument that the Secretary's regulations did not require sufficient “satisfactory assurances” that the state would devote enough personnel and funds to the program.

27 See S. Rep. No. 91-1282, 91st Cong., 2d Sess. 4 (1970), 3 U.S. Code Cong. & Admin. News 5177, 5180(1970).

28 Clean Air Act sec. 113(a), 42 U.S.C. sec. 1857c-8(a) (1970).

29 Water Pollution Control Act sec. 402(d), 33 U.S.C. sec. 1342(d) (Supp. IV, 1974).

30 By March 1975 26 state programs had been approved, see AFL-CIO v. Brennan, 2 OSHC 1654, 1656 (D.D.C. 1975). Four states have since withdrawn their programs. 5 OSH Rep. 183 (1975).

31 See, e. g., Clean Air Act secs. 209, 211(c)(4), 233, 42 U.S.C. secs. 1857f-6a, 1857f-6c(c)(4), 1857f-11 (1970) (motor-vehicle emissions, fuel standards, aircraft emissions); Water Pollution Control Act sec. 312(f), 33 U.S.C. sec. 1322(f) (Supp. IV, 1974) (marine sanitation); Noise Control Act secs. 17(c), 18(c), 42 U.S.C. secs. 4916(c), 4917(c) (Supp. IV, 1974) (railroad and motor carrier noise). The first two of these statutes, however, unlike OSHA, expressly preserve concurrent state power in most areas. Clear Air Act sec. 116, 42 U.S.C. sec. 1857d-1 (1970); Water Pollution Control Act sec. 510, 33 U.S.C. sec. 1370 (Supp. IV, 1974); while the same conclusion can easily be inferred from the limited preemption provisions of the noise statute.

32 So held in Columbus Coated Fabrics v. Industrial Comm'n, 1 OSHC 1361 (S.D. Ohio 1973).

33 29 U.S.C. sec. 667(a) (1970).

34 29 U.S.C. sec. 667(h) (1970).

35 David P. Currie, Motor Vehicle Air Pollution: State Authority and Federal Pre-emption, 68 Mich. L. Rev. 1083, 1086-87 (1970).

36 See Southern Ry. Co. v. OSHRC, 3 OSHC 1940, 1943 (4th Cir. 1976); Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d 1161, 1167 (D.C. Cir. 1975).

37 Sec. 4(b)(1), 29 U.S.C. sec. 653(b)(1) (1970).

38 Cf. sec. 611 of the Federal Aviation Act, 49 U.S.C. sec. 1431(b)(3) (1970), which despite the general authority of the Environmental Protection Agency over noise (42 U.S.C. secs. 4901 et seq. (Supp. IV, 1974)) places power in the Federal Aviation Administration to enact aircraft-noise standards so as to assure that the standards are consistent with “the highest degree of safety in air commerce or air transportation.” See also Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d 1161, 1169 (D.C. Cir. 1975): “[A] pesticide might not be dermally or nasally toxic, thus not presenting a hazard to farmworkers, but could be extremely toxic to other living things. In contrast to the [EPA] Administrator, the Secretary [of Labor] has no authority to resolve such conflicts.”

39 See also H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. 34 (1970); Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 1019 (Comm. Print 1971) (colloquy between Reps. Daniels and Erlenborn). An earlier bill would have exempted conditions over which other agencies “have statutory authority to prescribe or enforce standards.” H.R. 13373, 91st Cong., 2d Sess. (1970).

40 Dunlop v. Burlington Northern, 3 OSHC 1176 (D. Mont. 1975).

41 Seaboard Coast Line R.R. Co., 3 OSHC 1760 n.1 (1975).

42 Southern Ry. Co. v. OSHRC, 539 F.2d 335, 339-40 (4th Cir. 1976), Southern Pac. Transp. Co. v. Usery, 539 F.2d 386, 392-93 (5th Cir. 1976).

43 Texas E. Transmission Corp., 3 OSHC 1601, 1605 n.9a (1975) (Commissioner Cleary).

44 Whether an adopted regulation will oust OSHA before its effective date, however, is also unclear. If it does, there is a gap in coverage, though the authority to adopt standards, while not to enforce them, has literally been exercised.

45 539 F.2d 335 (4th Cir. 1976).

46 Id at 339. See also Southern Pac. Transp. Co. v. Usery, 539 F.2d 386, 389-92 (5th Cir. 1976), rejecting the industry-wide exemption and stating that “working conditions” may be expressed by regulation “as a location (maintenance shop), a category (machinery), or a specific item (furnace).”

47 Id at 338.

48 1 OSHC 1598(1974).

49 21 U.S.C. secs. 601 et seq. (1970).

50 1 OSHC at 1599.

51 Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d 1161 (1975).

52 116 Cong. Rec. 42206 (1970).

53 Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d 1161 (1975).

54 Fenix & Scisson, Inc., 3 OSHC 1165 (1975).

55 Prudential Lines, Inc., 3 OSHC 1532 (1975).

56 Texas E. Transmission Corp., 3 OSHC 1601 (1975).

57 S. Rep. No. 91-1282, 91st Cong., 2d Sess. 8 (1970), 3 U.S. Code Cong. & Admin. News 5177, 5184-85 (1970).

58 See Conf. Rep. No. 91-1765, 91st Cong., 2d Sess. 15-16 (1970), 3 U.S. Code Cong. & Admin. News 5228, 5229 (1970).

59 Cf. the Illinois Environmental Protection Act, Ill. Rev. Stat. ch. 111½, sec. 1005 (Supp. 1976-77), which combines rulemaking and adjudicatory powers in a board independent of the prosecuting agency. See David P. Currie, Rulemaking Under the Illinois Pollution Law, 42 U. Chi. L. Rev. 457(1975).

60 Budd Co. v. OSHRC, 513 F.2d 201 (3d Cir. 1975).

61 See Brennan v. OSHRC (Kesler & Sons Constr. Co.), 513 F.2d 553, 554 (10th Cir. 1975), deferring to the Secretary's construction of the statute without noting the dual-agency problem; Brennan v. S. Contractors Service, 492 F.2d 498, 501 (5th Cir. 1974), deferring to the Secretary's construction of a regulation, also without noting the problem; Brennan v. OSHRC (Ron M. Fiegen, Inc.), 513 F.2d 713, 715-16 (8th Cir. 1975) (alternative holding); contra, Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340, 1344 & n.12 (2d Cir. 1974), assuming that the Commission's interpretation of a regulation is entitled to deference but opining that this assumption may be erroneous in light of the Secretary's rulemaking power; Brennan v. OSHRC (Underhill Constr. Corp.), 513 F.2d 1032, 1038 & n.12 (2d Cir. 1975) (same); Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1262 (4th Cir. 1974), deferring to the Commission in interpreting the Act.

62 Sec. 11(a), 29 U.S.C. sec. 660(a) (1970).

63 Sec. 6(f), 29 U.S.C. sec. 655(f) (1970).

64 But see Arkansas-Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649, 653 (8th Cir. 1976), remarkably concluding that the validity of a regulation is to be judged in an enforcement case by the “arbitrary and capricious test rather than the substantial evidence test that applies in pre-enforcement review.” And see Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541 (3d Cir. 1976).

65 Though on occasion the Commission itself inexplicably took this position, see Arkansas-Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649, 653 n.4 (8th Cir. 1976), the Third Circuit has expressly upheld the Commission's power to determine the validity of a regulation, relying on an explicit provision in an earlier House bill and the absence of any indicated intention to eliminate such review, saying “it would be an exercise in futility for the Commission to enforce a citation under a standard which it knew. would be held invalid by this court.” Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 548-51 (1976). The Commission now agrees. Kennecott Copper Corp., 4 OSHC 1400 n.3 (1976). For the scope of such review see text at notes 114-19 infra.

66 There may be matters of “fact” relevant to the validity of a regulation, for example, the existence of the hazard sought to be prevented. But Congress has made clear its policy that deference respecting rulemaking belongs to the Secretary, and this policy should be relied on in interpreting the provision for deference to the Commission on questions of “fact.” It should be held that in reviewing a regulation the Commission is not authorized to make its own “findings” respecting the underlying facts but only to determine whether the Secretary's findings are supported by substantial evidence in the rulemaking record, as on direct review.

67 Accord, Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1262 (4th Cir. 1974).

68 Skidmore v. Swift & Co., 323 U.S. 134 (1944).

69 5 U.S.C. sec. 706(2)(A) (1970). The Review Commission is not within the exceptions to the APA, id., sec. 701, and there is no indication in OSHA or in its history that the APA was meant to be inapplicable where not inconsistent with the provisions of the later statute. See 5 U.S.C. sec. 559: “Subsequent statute may not be held to supersede or modify” the APA “except to the extent that it does so expressly.” For a narrow construction of this stringent requirement see Appalachian Power Co. v. Ruckelshaus, 477 F.2d 495 (4th Cir. 1973), discussed favorably in David P. Currie, Federal Air-Quality Standards and Their Implementation, 1976 A.B.F. Res. J. 365, 370-71. If it be argued that deference to agencies on questions of statutory interpretation or application is based upon the APA's exception for matters “committed to agency discretion,” 5 U.S.C. sec. 701(a)(2), one can urge that the relevant discretion resides in the Secretary rather than in the Commission. As to rulemaking this is confirmed by the explicit statutory provision for deference to the Secretary; as to other questions arising in enforcement the opposite conclusion seems to follow from the vesting of quasi-judicial powers in the Commission. Thus it is unnecessary to enter the great swamp surrounding the relationship between the discretionary exception and the provision for review of abuse of discretion.

70 See Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340, 1344 n.12 (2d Cir. 1974), describing this argument as “perhaps simplistic.”

71 This argument is suggested in Brennan v. OSHRC (Ron M. Fiegen, Inc.), 513 F.2d 713, 715 (8th Cir. 1975).

72 See id. at 715-16: “[1] t is the Commission and not the Secretary which is charged with the final administrative adjudication of the Act.”

73 29 U.S.C. sec. 655(b)(2) (1970).

74 5 U.S.C. sec. 553 (1970).

75 29 U.S.C. sec. 655(b)(3) (1970).

76 United States v. Florida E. Coast Ry. Co., 410 U.S. 224 (1973).

77 Associated Indus, v. Department of Labor, 487 F.2d 342, 348-49 (2d Cir. 1973); Industrial Union Dep't, AFL-CIO v. Hodgson, 499 F.2d 467, 474 (D.C. Cir. 1974); 29 C.F.R. sec. 1911.15(a)(2) (1974).

78 29 C.F.R. sec. 1911.15(b)(2) (1974).

79 29 U.S.C. sec. 655(f)(1970).

80 29 C.F.R. sec. 1911.15(a)(2) (1974).

81 Associated Indus, v. Department of Labor, 487 F.2d 342, 351 (2d Cir. 1973).

82 Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 393 n.67, 394 (D.C. Cir. 1973).

83 The Secretary may but need not seek the rulemaking recommendations of an advisory committee with both management and labor representation, 29 U.S.C. sec. 656(b) (1970). The improper composition of such a committee was urged as a ground for invalidating the resulting regulation in National Roofing Contractors Ass'n v. Brennan, 495 F.2d 1294, 1296 (7th Cir. 1974). The court over dissent held there was no showing that general contractors on the committee did not adequately represent the interests of roofing contractors. The statute does not say whether invalidation is the proper remedy for an improper committee. Since the committee need never be established, since its recommendations are merely advisory, and since ample opportunity is afforded for all interested persons to participate in the rulemaking process, invalidation is arguably an extreme sanction for what may often appear harmless error. On the other hand the statute does reflect the conviction that employer (and employee) presence on the insider committee is important, and no lesser sanctions are provided or immediately apparent; a mandamus proceeding to alter committee membership, assuming it lies at all, might well take longer than the 90- to 270-day period allowed for submission of the committee's report (29 U.S.C. sec. 655(b)(1) (1970)). Invalidation is a common sanction for failure to observe procedural requirements.

84 Synthetic Organic Chem. Mfrs. Ass'n v. Brennan, 506 F.2d 385, 388-89 (3d Cir. 1974).

85 Synthetic Organic Chem. Mfrs. Ass'n v. Brennan, 503 F.2d 1155, 1160 (3d Cir. 1974).

86 Sec. 6(e), 29 U.S.C. sec. 655(e) (1970).

87 See Kennecott Copper Corp. v. EPA, 462 F.2d 846, 850 (D.C. Cir. 1972), holding the APA satisfied by a statement of basis and purpose that gave no justification for the challenged levels set in an air-quality standard but finding authority to demand a better explanation implicit in the provision for judicial review.

88 5 U.S.C. sec. 553(c) (1970).

89 Dry Color Mfrs.' Ass'n, Inc. v. Department of Labor, 486 F.2d 98, 105-7 (3d Cir. 1973). See also Synthetic Organic Chem. Mfrs. Ass'n v. Brennan, 503 F.2d 1155, 1157 (3d Cir. 1974), applying the same standard to find a statement of reasons adequate.

90 See Currie, supra note 59, at 469-73.

91 There is an obvious tension between the policy of adequate opportunity to comment and the need for ultimate conclusion of the rulemaking proceeding. The courts have generally rejected any broad argument that the APA notice provisions require a new chance to comment every time a proposal is revised: “A contrary rule would lead to the absurdity that. the agency can learn from the comments on its proposals only at the peril of starting a new procedural round of commentary. “South Terminal Corp. v. EPA, 504 F.2d 646, 658-59 (1st Cir. 1974). In South Terminal the court stressed that the final regulation, while differing from the original proposal, was a “logical outgrowth of the hearing” for which sufficient notice had been given. But it is equally clear that the notice and comment requirements would be meaningless if notice of a proposed rule regulating the construction of ladders were held adequate to support a regulation limiting emissions of lead. A commonsense reconciliation of the competing policies is called for in interpreting the statutory requirements, and it may be desirable to spell out the basic governing considerations by regulation. The Illinois Environmental Protection Act, for example, allows revisions without further hearing if “in response to suggestions made at the hearing,” but requires publication of post-hearing revisions and a brief opportunity for further written comment. See Ill. Rev. Stat. ch. 111½, sec. 1028 (Supp. 1976-77); Ill. PCB Regs., ch. 1, R. 211 (1970); Currie, supra note 59, at 473.

92 Without much discussion the court relied on the requirement, 29 U.S.C. sec. 655(b)(2) (1970), that upon determining to adopt a rule the Secretary “shall publish the proposed rule within sixty days after the submission of the advisory committee's recommendations.” On its face this requirement seems designed to prevent the Secretary from stalling rather than to invalidate previous rulemaking proposals; indeed, it does not in terms even require that the committee report be published at all. Cf. Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692 (D.C. Cir. 1974), applying a textually comparable requirement to enforce rapid rulemaking under the federal Water Pollution Control Act, 33 U.S.C. sec. 1304(b) (Supp. IV, 1974). The additional word “after” in OSHA seems likely to have been intended merely to designate the point from which the Secretary's diligence is to be measured. Cf. the requirement in the following paragraph that upon timely request the Secretary shall “within thirty days after the last day for filing such objections” publish a notice of public hearing, 29 U.S.C. sec. 655(b)(3) (1970). I see no reason to think the use of the word “after” in this provision was meant to preclude the Secretary from ordering a hearing before the time for objections has expired; so to read it would only cause delay.

93 Dry Color Mfrs.' Ass'n, Inc. v. Department of Labor, 486 F.2d 98, 105 (3d Cir. 1973). Caution should, however, be exercised lest the salutary requirement of an explanation be applied with such a vengeance as to cripple rulemaking by imposing an impossible burden of response to every minor issue raised. See Currie, supra note 59, at 504-5.

94 Sec. 6(a), 29 U.S.C. sec. 655(a) (1970).

95 Sec. 3(9), (10), 29 U.S.C. sec. 652(9), (10) (1970).

96 S. Rep. No. 91-1282, 91st Cong., 2d Sess. 6 (1970), 3 U.S. Code Cong. & Admin. News 5177, 5182(1970).

97 Id.

98 Richard S. Morey, Mandatory Occupational Safety and Health Standards-Some Legal Problems, 38 Law & Contemp. Prob. 584, 587-90 (1974). Illustrative is Underhill Constr. Co. v. Secretary of Labor, 526 F.2d 53 (2d Cir. 1975). There, a standard adopted under an earlier statute had applied only to government contracts entered into after the adoption of the standard; the court upheld the application of the Secretary's “existing” standard incorporating it into a later contract, stating that the effective date was not a part of the standard. That this broad state ment cannot stand is shown by considering a standard allowing two years to comply because of necessary construction time; accelerating the compliance date in such circumstances would impose significant hardships not contemplated by the initial regulation. In Underbill it is less obvious that the extension of the date was substantively significant. Yet it may be that the cutoff date reduced hardships by putting contractors who could not readily comply on notice not to apply for government contracts, an option closed by the generalization of the standard. It is precisely to resolve such possible problems that the ordinary comment and hearing processes are designed.

99 Sec. 6(c)(1), 29 U.S.C. sec. 655(c)(1) (1970).

100 S. Rep. No. 91-1282, 91st Cong., 2d Sess. 7 (1970), 3 U.S. Code Cong. & Admin. News 5177, 5184(1970).

101 Dry Color Mfrs.' Ass'n, Inc. v. Department of Labor, 486 F.2d 98, 105 n.9a (3d Cir. 1973). Accord, Florida Peach Growers Ass'n, Inc. v. Department of Labor, 489 F.2d 120, 129-30 & n.16 (5th Cir. 1974), quoting supporting legislative history.

102 Dry Color Mfrs.' Ass'n, Inc. v. Department of Labor, 486 F.2d 98, 104 n.9a (3d Cir. 1973).

103 Florida Peach Growers Ass'n, Inc. v. Department of Labor, 489 F.2d 120, 130-32 (5th Cir. 1974), holding insufficient a showing that “a few” farmworkers had been made slightly ill by contact with pesticide residues on crops, despite proof of serious accidents connected with improper pesticide application, because the pesticide was shown to decompose rapidly in the field.

104 S. Rep. No. 91-1282, 91st Cong., 2d Sess. 2-3 (1970), 3 U.S. Code Cong. & Admin. News 5177, 5179 (1970).

105 Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 1218 (Comm. Print 1971) (Rep. Steiger).

106 Sec. 5(a), 29 U.S.C. sec. 654(a) (1970).

107 Sec. 6(c)(3), 29 U.S.C. sec. 655(c)(3) (1970). A loophole is provided, however, since the emergency standard does not automatically expire at the end of six months but remains in force “until superseded” by the permanent standard. Actions to compel the Secretary to issue a permanent standard within the deadline have been attempted despite the jurisdictional and standing problems raised by the absence of explicit mandamus provisions such as are found in the federal air- and water-pollution statutes, 42 U.S.C. sec. 1857h-2 (1970); 33 U.S.C. sec. 1365 (Supp. IV, 1974). See Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d 1161 (D.C. Cir. 1975), where such a challenge was rejected on the merits without discussion of jurisdiction. In any event, experience under the pollution statutes has established that the date for compliance is quite likely to have passed before the court has decided the case, and if the rulemaker has not gathered and digested sufficient information to make a rational decision it is at best bad policy, and very likely to lead to an invalid regulation, to order immediate promulgation. See, e. g., Riverside v. Ruckelshaus, 4 E.R.C. 1728 (C.D. Cal. 1972). Statutory deadlines may marginally speed up administrative action, but in the absence of an administrable sanction such as invalidating the emergency regulation they are not likely to be strictly enforceable.

108 See David P. Currie & Frank I. Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 Colum. L. Rev. 1, 39-54 (1975).

109 Sec. 6(f), 29 U.S.C. sec. 655(f) (1970).

110 The courts have entertained and partly sustained attacks on regulations mounted by unions whose members alleged that the standard afforded them inadequate protection. AFL-CIO v. Brennan, 530 F.2d 109 (3d Cir. 1975); Industrial Union Dep't, AFL-CIO v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974). This seems the correct result in terms of the apparent statutory policy to promote full airing of the merits of the regulation, despite the technical argument that it is the unsafe workplace, not the allegedly weak standard, that adversely affects workers. A narrower interpretation would leave without judicial enforcement the statutory requirement that standards be tight enough to “provide safe or healthful employment,” 29 U.S.C. sec. 652(8) (1970).

111 Venue in the petitioner's circuit of residence or principal place of business assures a forum convenient for the petitioner, but so would venue where the work subject to the regulation is to be performed. Not only does it appear to make sense that each court of appeals have jurisdiction over working conditions within its own circuit, but such a venue provision would avoid the difficult problems of determining corporate “residence” or “principal place of business” that have plagued the courts under comparable statutes such as 28 U.S.C. secs. 1332(c), 1391 (1970). See David P. Currie, Federal Courts: Cases and Materials 483-89, 856 (2d ed. St. Paul: West Publishing Co., 1975).

112 The statute is unusual in extending the substantial-evidence test, familiar for findings of “fact” (see, e. g., 15 U.S.C. sec. 41 (1970) (Federal Trade Commission)) to all “determinations of the Secretary.” Remarking on the anomaly of assessing policy judgments in terms of “substantial evidence,” the Second Circuit has taken the statute to mean exactly what it says, Associated Indus, v. Department of Labor, 487 F.2d 342 (2d Cir. 1973). The District of Columbia Circuit has balked, indicating it would interpret the test differently according to the nature of the question: “Policy choices [such as the establishment of an asbestos exposure level in the face of inconclusive evidence correlating exposure and risk] are not susceptible to the same type of verification or refutation by reference to the record as are some factual questions. Consequently, the court's approach must necessarily be different no matter how the standards of review are labeled.” Industrial Union Dep't, AFL-CIO v. Hodgson, 499 F.2d 467, 474-75 (D.C. Cir. 1974). With respect to both kinds of determinations, however, the statutory use of “substantial evidence” clearly makes the question, as in review of a jury finding, whether the decision was reasonable. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); NLRB v. Columbian Enameling & Stamping Co. 306 U.S. 292, 300 (1939). The government argued in Associated Industries and Industrial Union that the allegedly more lenient test of arbitrariness should be applied to policy determinations. Both courts doubted whether this would have made any difference. 499 F.2d at 473; 487 F.2d at 349-50. It is indeed difficult to envision the hair-splitting distinction that would permit a court to say honestly that a determination so unreasonable as not to be based on substantial evidence was nevertheless not so unreasonable as to be arbitrary.

113 42 U.S.C. sec. 1857h-5(b) (1970); 33 U.S.C. sec. 1369(b) (Supp. IV, 1974).

114 S. Rep. No. 91-1282, 91st Cong., 2d Sess. 8 (1970); 3 U.S. Code Cong. & Admin. News 5177, 5184 (1970): “While this would be the exclusive method for obtaining pre-enforcement judicial review of a standard, the provision does not foreclose an employer from challenging the validity of a standard during an enforcement proceeding.”

115 534 F.2d 541, 551-52 (3d Cir. 1976).

116 See also Arkansas-Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649, 653 (8th Cir. 1976), concluding without reasons that in an enforcement case the validity of a regulation is to be judged by the “arbitrary and capricious” test rather than by the substantial-evidence test that applies in preenforcement review.

117 See text at notes 142-44 infra.

118 See note 112 supra.

119 Currie & Goodman, supra note 108, at 43-45.

120 Two influential courts have moved significantly in the direction of so holding by insisting that the rulemaking record contain an adequate basis for the regulation. Associated Indus, v. Department of Labor, 487 F.2d 342, 351-53 (2d Cir. 1973); Industrial Union Dep't, AFL-CIO v. Hodgson, 499 F.2d 467, 475-76 (D.C. Cir. 1974). And see 29 C.F.R. sec. 1911.15(a)(2) (1974), declaring that the substantial-evidence and hearing provisions “suggest a Congressional expectation that the rule making would be on the basis of a record to which a substantial evidence test. may be applied” when a hearing is held.

121 See text at notes 74-90 supra.

122 Currie & Goodman, supra note 108, at 39-50.

123 See Kenneth Gulp Davis, Administrative Law Text 160-62, 164-65 (3d ed. St. Paul: West Publishing Co., 1972).

124 See Florida Peach Growers Ass'n, Inc. v. Department of Labor, 489 F.2d 120, 128 (5th Cir. 1974), rejecting the argument that the substantial-evidence provision applies only to permanent standards since the judicial-review paragraph refers to any “standard issued under this section,”i. e., sec. 655, which contains authority for consensus, established, emergency, and permanent standards.

125 This is not to say that judicial review is wholly ineffective. Both the emergency standards so far attacked in court have been set aside, one for failure to give an adequate statement of reasons, Dry Color Mfrs.' Ass'n, Inc. v. Department of Labor, 486 F.2d 98 (3d Cir. 1973), and the other because the Secretary's own factual materials failed to establish the requisite grave danger, Florida Peach Growers Ass'n, Inc. v. Department of Labor, 489 F.2d 120 (5th Cir. 1974).

126 321 U.S. 414 (1944).

127 321 U.S. at 468. See also id. at 469: [I]t is conceded that Congress could not have compelled judicial enforcement of all price regulations, without regard to their validity, if it had not given opportunity for attack upon them through the Emergency Court.”

128 Moreover, Justice Rutledge concurred with the Court's decision in Bowles v. Willingham, 321 U.S. 503 (1944), that the procedure he found objectionable in the criminal context in Yakus was permissible in a civil enforcement proceeding, such as is common under OSHA. He based his concurrence, however, on the ground that the prior opportunity for challenging the regulation, which he thought inadequate in the criminal case, was sufficient for the civil; and the adequacy of the prior opportunity was an explicit condition of his concurrence. Id. at 526-27.

129 See note 122 supra.

130 419 U.S. 565, 580, 583 (1975).

131 321 U.S. at 467, 468.

132 In fact the opinion embraced both theories: “The problem therefore is not solely one of individual right or due process of law. It is equally one of the separation and independence of the powers of government and of the constitutional integrity of the judicial process.”Id. at 468.

133 In Florida Peach Growers Ass'n, Inc. v. Department of Labor, 489 F.2d 120, 129 (5th Cir. 1974), however, the court noted that the emergency regulation had been stayed pending the appeal and that the review proceeding had consumed the entire six-month period allowed for development of a permanent standard. Under such circumstances “even an affirmance would be a hollow victory for the Secretary.” The reality of the emergency power is somewhat diminished, while not inevitably destroyed, by the possibility of a stay. Denial of a stay, on the other hand, effectively precludes judicial review of a standard whose prescribed life is only six months. The only meaningful resolution of this dilemma would be to provide for expedited review after the pattern of interlocutory injunctions.

134 29 U.S.C. sec. 662(a) (1970).

135 28 U.S.C. sec. 2347(b) (1970).

136 Sec. 3(8), 29 U.S.C. sec. 652(8) (1970).

137 “Health” is broad enough to include mental health, and I see no reason to think Congress meant to exclude it. Line-drawing problems may appear if mental health is included: Presumably Congress was not thinking of merely esthetic conditions that might make workers grumpy.

138 And possibly a third: that the “practices,” etc., the Secretary may require do not include shutting down the business. This construction would not eliminate the possibility that the Secretary must require lesser measures that are economically unreasonable. Moreover, there may be situations in which a shutdown is economically justifiable.

139 E. g., 33 U.S.C. sec. 1301 (Supp. IV, 1974) (water pollution); 15 U.S.C. sec. 2056 (Supp. IV, 1974) (consumer product safety: “unreasonable risk of injury”).

140 AFL-CIO v. Brennan, 530 F.2d 109, 120-23 (3d Cir. 1975).

141 534 F.2d 541 (3d Cir. 1976).

142 29 U.S.C. sec. 185 (1970).

143 See Heinz v. Bowles, 149 F.2d 277, 281 (Emer. Ct. App. 1945). The statute required maximum prices to be “generally fair and equitable.” The court said:

[I]f the maximum prices enabled most of the non-processing slaughterers to operate profitably, the regulation would not be rendered invalid by the fact that an occasional marginal producer in the group could not stay in business under the established ceilings.

144 Sec. 10(c), 29 U.S.C. sec. 659(c) (1970).

145 534 F.2dat 555.

146 Sec. 6(b)(5), 29 U.S.C. sec. 655(b)(5) (1970).

147 Sec. 6(c), 29 U.S.C. sec. 655(c) (1970): “[S]ubstances or agents determined to be toxic or physically harmful or from new hazards. “Except for new hazards, there is no indication that the slight difference in phraseology is meant to be significant. See text at notes 104-6 supra for discussion of what is included.

148 See Currie, supra note 59, at 480-85; Currie, supra note 70, at 366-67.

149 Synthetic Organic Chemical Mfrs. Ass'n v. Brennan, 503 F.2d 1155, 1160-61 (3d Cir. 1974).

150 Society of Plastics Industry, Inc. v. OSHA, 509 F.2d 1301, 1308 (2d Cir. 1975) (animal deaths at 50 ppm, standard 1 ppm).

151 It would be possible to read the explicit reference to feasibility in this section to suggest that such matters are not to be considered in respect to other standards adopted pursuant to the general definition, which does not use the term “feasible.” Such an interpretation, however, would produce so bizarre a result, as I have indicated, that it should not lightly be indulged. Moreover, the emphatic language of the toxic-material provision argues that Congress meant the standards adopted under it to be especially strict; no reason appears why Congress might have wanted feasibility to be considered only in respect to toxic materials. The language of the general provision, as I have argued, will support a more rational construction. See text at notes 138-40 supra.

152 That Congress may to some extent force and anticipate the development of new technology was affirmed in what I view as dictum in Society of Plastics Industry, Inc. v. OSHA, 509 F.2d 1301, 1308-10 (2d Cir. 1975), as more fully developed in a related air-pollution context in International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973). But the latter decision stressed that the technology relied on must be predictably available by the date on which the standard is to be met.

In the Plastics case the standard required engineering controls on chemical concentrations only to the lowest practicable level and allowed the use of respirators where dangerous concentrations remained.

153 See the discussion of distillation for the removal of relatively innocuous inorganic salts from wastewater in David P. Currie, Pollution: Cases and Materials 264 (St. Paul: West Publishing Co., 1975).

154 E. g., 42 U.S.C. sec. 1857c-6 (1970) (performance standard for new air-pollutant sources).

155 E. g., Ill. Rev. Stat. ch. 111½, sec. 1027 (Supp. 1976-77) (pollution regulations).

156 Industrial Union Dep't, AFL-CIO v. Hodgson, 499 F.2d 467, 477 (D.C. Cir. 1974).

157 Id As the court says, this does not mean no standard may validly put even a single employer out of business.

158 Florida Peach Growers Ass'n, Inc. v. Department of Labor, 489 F.2d 120, 130 (5th Cir. 1974).

159 499 F.2d 467, 478-81 (D.C. Cir. 1974).

160 See Anning-Johnson Co. v. EPA, 5 Ill. P.C.B. 41 (1972).

161 E. g., 33 U.S.C. sec. 1301 (Supp. IV, 1974) (water pollution); 42 U.S.C. secs. 1857c-5, -7 (1970) (air). See also 15 U.S.C. sec. 2058 (Supp. IV, 1974) (consumer product safety).

162 See text at notes 215-23 infra.

163 Sec. 5(a)(2), 29 U.S.C. sec. 654(a)(2) (1970).

164 While sec. 5(b) also provides that “each employee shall comply” with applicable standards, 29 U.S.C. sec. 654(b) (1970), and sec. 2(b)(2), 29 U.S.C. sec. 651(2) (1970), announces that “employers and employees have separate but dependent responsibilities” for “achieving safe and healthful working conditions,” no machinery is provided for enforcing this duty against employees. Thus the Third Circuit has correctly concluded that sec. 5(b) is merely hortatory as to employees: The Commission cannot enforce their “duty” by issuing an order against them. Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 552-55 (3d Cir. 1976).

165 Sec. 5(a)(1), 29 U.S.C. sec. 654(a)(1) (1970).

166 See 33 U.S.C. sec. 1364 (Supp. IV, 1974) (water), 42 U.S.C. sec. 1857h-1 (1970) (air).

167 S. Rep. No. 91-1282, 91st Cong., 2d Sess. 9 (1970), 3 U.S. Code Cong. & Admin. News 5177, 5185-86 (1970). See David P. Currie, Enforcement Under the Illinois Pollution Law, 70 Nw. U.L. Rev. 389, 391-92(1975).

168 S. Rep. No. 91-1282, 91st Cong., 2d Sess. 4 (1970), 3 U.S. Code Cong. & Admin. News 5177, 5180(1970).

169 See Currie, supra note 167, at 407-11.

170 One court has wisely held that “likely” does not mean more likely than not, for that would exclude many hazards that ought to be prevented: “If evidence is presented that a practice could eventuate in serious physical harm upon other than a freakish or utterly implausible concurrence of circumstances, the Commission's expert determination of likelihood should be accorded considerable deference.” National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1265 n.33 (D.C. Cir. 1973).

171 In Brennan v. OSHRC (Vy Lactos Laboratories, Inc.), 494 F.2d 460 (8th Cir. 1974), the court held it error for the Administrative Law Judge to import into the general-duty clause the requirement of sec. 17(k), 29 U.S.C. sec. 666(j) (1970), that a “serious” violation be one of which the employer knew or with reasonable diligence could have known. The court acknowledged, however, that the hazard must nonetheless be “recognized,” and, in the absence of proof of industry recognition, remanded for a finding of actual employer knowledge. Whether there is a substantive difference between the foreseeability requirements of the two sections will be explored below; I read Vy Lactos not as denying the relevance of foreseeability to sec. 5(a) but as insisting that the correct formula be used.

172 One should distinguish a system of compensation for injury or disease in which the burden of compensating the victim can be considered a reasonable cost of production. OSHA does not provide payments to victims.

173 Brennan v. OSHRC (Vy Lactos Laboratories, Inc.), 494 F.2d 460 (8th Cir. 1974).

174 National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).

175 American Smelting & Ref. Co. v. OSHRC, 501 F.2d 504 (8th Cir. 1974), observing that “recognized” was a substitute for an earlier requirement that the hazard be “readily apparent” and was intended to be more inclusive; National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1265 n.32 (D.C. Cir. 1973), quoting the sponsor of the amendatory language, specifically embracing the industry-knowledge standard. Even this, however, appears to allow an entire industry to lag. Cf. The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932). But see Southern Ry. Co., 3 OSHC 1657, 1658 (1975), holding that, while “recognized” hazards are measured by industry experience, an abatement order may require practices at a level “above that considered customary or ‘reasonable' by an industry. “Fitting these two propositions together is not easy.

176 One court has expressly held that the employer's duty cannot be avoided by delegation to an independent contractor. REA Express, Inc. v. Brennan, 495 F.2d 822 (2d Cir. 1974). While not compelled by the statutory language, this result is strongly suggested by it (“shall furnish. employment. free from recognized hazards”). And, while going beyond the common law notion of responsibility, it is not contrary to the general statutory policy of limiting responsibility to what the employer can control, for he can so arrange his contracts as to retain authority to assure that safe and healthy conditions prevail. An opposite holding might open a large loophole, as the contractor himself may be responsible only for his own employees. See text at notes 191-201 infra.

177 National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1266, 1268 (D.C. Cir. 1973); accord, Brennan v. OSHRC (Hanovia Lamp Div.), 502 F.2d 946, 951-52 (3d Cir. 1974).

178 29 U.S.C. sec. 651(b) (1970).

179 H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. 21 (1970).

180 See the alternative formulation in Richard S. Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harv. L. Rev. 988, 993 (1973), that there is no violation if “elimination of a particular hazard is physically or economically impossible unless the entire employment activity is brought to a halt.” Like the courts, Morey bases his construction on the expressed purpose to eliminate “preventable” hazards. I agree this means employers should not have to do what is unreasonable, but if the hazard is great enough and the business insufficiently profitable it may be reasonable to put people out of business. “Preventable” can include whatever ought to be prevented. Similarly I disagree with Morey's conclusion that the hazard must be one within the employer's control, as the risk of drunken drivers of other vehicles is not, id. at 994. Once again, the employer can prevent such a hazard by not using the roads, and the proper question should be whether or not it is reasonable to require him to do so. 1 see nothing in the language, history, or purpose of the law to cast doubt on the conclusion that one may violate the general-duty clause by sending workers to paint flagpoles during a thunderstorm.

181 Standard Oil Co. v. United States, 221 U.S. 1 (1911).

182 Arizona v. California, 373 U.S. 546, 567-75 (1963). The Commission has taken this approach with respect to sec. 10(c), 29 U.S.C. sec. 659(c) (1970), which literally authorizes an appeal to the “Secretary” with respect to abatement orders. This was obviously an oversight left from an earlier draft of the bill in which there was no Commission at all. H. K. Porter Co., 1 OSHC 1600(1974).

183 Brennan v. OSHRC (Hanovia Lamp Div.), 502 F.2d 946, 951 (3d Cir. 1974).

184 Id.

185 National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).

186 Id. at 1267; Brennan v. OSHRC (Hanovia Lamp Div.), 502 F.2d 946, 952 (3d Cir. 1974). See also Brennan v. Butler Lime & Cement Co., 520 F.2d 1011 (7th Cir. 1975), and Brennan v. OSHRC (Republic Creosoting Co.), 501 F.2d 1196 (7th Cir. 1974), applying the same test to determine the existence of a “serious” violation, see text at notes 205-7 infra, where the statute requires that the employer could with reasonable diligence have known of the violation.

187 Brennan v. OSHRC (Alsea Lumber Co.), 511 F.2d 1139 (9th Cir. 1975).

188 Home Plumbing & Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976). See also Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 547 (3d Cir. 1976), agreeing without attempting to reconcile the result with the statute, but finding that concerted employee disobedience of a regulation was no excuse since “the employer can refuse employment to those who insist on violating the standard.”Accord, I.T.O. Corp. v. OSHRC, 4 OSHC 1574 (1st Cir. 1976).

189 29 C.F.R. sec. 1910.180(j) (1974).

190 See the separate opinion of then Commission Chairman Moran in the 1-1 decision in Hammonds Constr., Inc., 3 OSHC 1260 (1975), taking the position that the employer should not be held when a foreman allowed an employee to expose himself to an electrical risk.

191 Hawkins Constr. Co., 1 OSHC 1761 (1974) (general contractor not responsible for hazard to subcontractor's employees); R. H. Bishop Co., 1 OSHC 1767 (1974) (violation to expose own employees to hazard created by others).

192 See 89 Harv. L. Rev. 793, 796 (1976), preferring the test of ability to control and stressing the statute's goal to assure safety “so far as possible,” 29 U.S.C. sec. 651 (1970).

193 Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974).

194 Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975).

195 Brennan v. OSHRC (Underhill Constr. Corp.), 513 F.2d 1032 (2d Cir. 1975).

196 29 C.F.R. sec. 1910.5(d) (1974).

197 Brennan v. OSHRC (Underbill Constr. Corp.), 513 F.2d 1032, 1038 n.10 (2d Cir. 1975).

198 See 5 OSH Rep. 1539; 6 id. 192 (1976).

199 Beatty Equipment Leasing, Inc., 4 OSHC 1211 (1976).

200 Grossman Steel & Aluminum Corp., 4 OSHC 1185 (1975).

201 Id. (dictum).

202 Brennan v. OSHRC (Interstate Glass Co.), 487 F.2d 438, 440 & n.11 (8th Cir. 1973). See also Dunlop v. Haybuster Mfg. Co., 524 F.2d 222, 223 (8th Cir. 1975) (13 violations, including failure to cover live parts of electrical equipment; total penalty $315). See also the report of a task force commissioned by OSHA itself, charging that the prosecutor is far too reluctant in framing charges to classify violations as “serious,” 5 OSH Rep. 1196 (1976).

203 A pending bill, H.R. 14232, 94th Cong., would make matters worse by forbidding penalties for first violations, unless “serious” or “willful,” by employers with fewer than ten employees. See 6 OSH Rep. 300 (1976).

204 See Continental Steel Corp., 3 OSHC 1410 (1975), where the Commission, rebuking its judge for having ignored the requirement that a penalty be imposed, actually imposed a penalty of one dollar.

205 Sec. 17(c), 29 U.S.C. sec. 666(j) (1970).

206 Two courts have held it enough for a “serious” violation of a safety standard that if an accident occurred, it would likely be serious, even though an accident was improbable. California Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986, 987-88 (9th Cir. 1975); Shaw Constr., Inc. v. OSHRC, 534 F.2d 1183, 1185 (5th Cir. 1976). Indeed the California Stevedore opinion appears to read the probability requirement out of the definition altogether: “When human life or limb is at stake, any violation of a regulation is ‘serious.'” Moreover, the court surprisingly conjectures it may be easier in terms of probability to show a serious violation than to show a nonserious general-duty offense. The committee reports, which largely paraphrase the statute, are no help.

207 Brennan v. OSHRC (Republic Creosoting Co.), 501 F.2d 1196 (7th Cir. 1974).

208 Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200, 1206-7 (3d Cir. 1974).

209 See Intercounty Constr. Co. v. OSHRC, 522 F.2d 777, 779-80 (4th Cir. 1975); United States v. Dye Constr. Co., 510 F.2d 78, 81-82 (10th Cir. 1975); F. X. Messina Constr. Corp. v. OSHRC, 505 F.2d 701, 702 (1st Cir. 1974). The statement in Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200, 1207 (3d Cir. 1974), that “willfulness” connotes a “deliberate flaunting [sic] of the Act,” an “obstinate refusal to comply,” is not squarely contrary to the above holdings and was not necessary to the result, as indicated at text accompanying note 208.

210 E. g., Spies v. United States, 317 U.S. 492 (1943).

211 United States v. Dye Constr. Co., 510 F.2d 78 (10th Cir. 1975).

212 See Model Penal Code sec. 2.02(4) (Proposed Official Draft, 1962).

213 F. X. Messina Constr. Corp. v. OSHRC, 505 F.2d 701, 702 (1st Cir. 1974).

214 Id.; Intercounty Constr. Co. v. OSHRC, 522 F.2d 777, 780-81 (4th Cir. 1975). See also Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200, 1207 (3d Cir. 1974) (“deliberate flaunting [sic] of the Act”).

215 Literally one ignorant of the law can be said to willfully provide employees with an unsafe workplace but hardly to violate the law willfully; the statute requires the latter, but the choice of words was not likely intended to be significant. The Model Penal Code sec. 2.02(8) (Proposed Official Draft, 1962), defines “willful” as the equivalent of “knowing”“unless a pur pose to impose further requirements appears” and provides that a knowing violation requires only awareness of the facts. The Commission has divided 1-1 on the question. Amulco Asphalt Co., 3 OSHC 1396 (1975).

216 Bethlehem Steel Corp. v. OSHRC, 4 OSHC 1451, 1453, 1454 (3d Cir. 1976) (dictum).

217 “Any employer who. repeatedly violates the requirements.”

218 Sec. 6(d), 29 U.S.C. sec. 655(d) (1970).

219 Sec. 16, 29 U.S.C. sec. 665 (1970).

220 Sec. 6(b)(6)(A) (1970), 29 U.S.C. sec. 655(b)(6)(A). The employer must have a program of compliance “as quickly as practicable” and must take “all available steps” to safeguard his employees in the interim—presumably short of closing down, which would negate the variance. Variance pending the hearing may be granted ex parte. Id.

221 Cf. Moody v. Flintkote Co., 2 Ill. P.C.B. 341 (1971).

222 E. g., Ill. Rev. Stat. ch. 111½, sec. 1035 (Supp. 1976-77).

223 Sec. 9, 29 U.S.C. sec. 658(a) (1970).

224 Nor is there a requirement of an immediate hearing, but the lack is satisfied by the provision that employees may obtain a later hearing to contest the length of time allowed for compliance. Sec. 10(c), 29 U.S.C. sec. 659(c) (1970).

225 See Currie, supra note 69, at 404-5.

226 See The Federalist Nos. 78-79 (A. Hamilton).

227 285 U.S. 22 (1932).

228 See Waukegan v. Pollution Control Bd., 57 Ill. 2d 170, 311 N.E. 2d 146 (1974).

229 Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 320 (1909); Lloyd Sabaudo S.A. v. Hiring, 287 U.S. 329 (1932).

230 McLean Trucking Co. v. OSHRC, 503 F.2d 8, 11 (4th Cir. 1974); Lake Butler Apparel Co. v. Secretary of Labor, 519 F.2d 84, 88-89 (5th Cir. 1975); Beall Constr. Co. v. OSHRC, 507 F.2d 1041, 1045 (8th Cir. 1974).

231 Beall Constr. Co. v. OSHRC, 507 F.2d 1041, 1044 (8th Cir. 1974); American Smelting & Ref. Co. v. OSHRC, 501 F.2d 504, 515 (8th Cir. 1974); Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200, 1204-5, 1216 (3d Cir. 1974).

232 Atlas Roofing Co. v. OSHRC, 518 F.2d 990, 1011 (5th Cir. 1975).

233 372 U.S. 144(1963).

234 See Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200, 1204 (3d Cir. 1974): “[C]andor compels us to concede that the punitive aspects of the OSHA penalties, particularly for a ‘willful' violation, are far more apparent than any ‘remedial' features”; Charles L. Hay, OSHA Penalties: Some Constitutional Considerations, 10 Idaho L. Rev. 222 (1974), concluding on the Mendoza test that OSHA penalties are primarily punitive and thus within the Sixth Amendment.

235 See Muniz v. Hoffman, 422 U.S. 454 (1975), upholding a $10,000 fine for criminal contempt without jury and not deciding the question posed in the text; United States v. J. B. Williams Co., 498 F.2d 414, 421 (2d Cir. 1974), upholding a penalty of nearly $500,000 over the argument for a criminal jury.

236 See United States v. Barnett, 376 U.S. 681 (1964) (dictum).

237 See Rollin M. Perkins, Criminal Law 692-710 (Brooklyn: Foundation Press, 1957). Contra, Jonathan I. Charney, The Need for Constitutional Protections for Defendants in Civil Penalty Cases, 59 Cornell L. Rev. 478 (1974), arguing for jury trial and other criminal safeguards whenever penalties are computed so as to deter or punish.

238 E. g., Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 320 (1909). See also Hepner v. United States, 213 U.S. 103 (1909) (dictum), reciting with approval numerous early decisions upholding the right to collect penalties in civil actions.

239 United States v. J. B. Williams Co., 498 F.2d 414, 421-24 (2d Cir. 1974); Hepner v. United States, 213 U.S. 103, 115 (1909) (dictum), where the Court held a directed verdict proper.

240 Louis L. Jaffe, Judicial Control of Administrative Action 90 (Boston: Little, Brown & Co., 1965).

241 519 F.2d 1200 (3d Cir. 1974), cert, granted, 96 S. Ct. 1458 (1976).

242 Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 320 (1909); Lloyd Sabaudo S.A. v. Elting, 287 U.S. 329 (1932).

243 Act of Mar. 3, 1903, ch. 1012, sec. 9, 32 Stat. 1213; Immigration Act of 1917, ch. 29, sec. 9, 39 Stat. 874, 880, as amended by Act of May 26, 1924, ch. 190, 43 Stat. 153, 166.

244 Union Ins. Co. v. United States, 73 U.S. (6 Wall.) 759, 764 (1867); The Sarah, 21 U.S. (8 Wheat.) 391, 394 (1823) (dictum).

245 See Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972).

246 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

247 Curtis v. Loether, 415 U.S. 189, 194-95 (1974); Pernell v. Southall Realty, 416 U.S. 363, 383 (1974).

248 The demise of the cleanup doctrine has undermined this basis for Jones & Laughlin, and one may fairly view the legitimacy of back-pay orders as once again an open question. See Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962); Martin H. Redish, Seventh Amendment Right to Jury Trial: A Study in the Irrationality of Rational Decision Making, 70 Nw. U.L. Rev. 486 (1975). Recent decisions, however, have upheld juryless back-pay decisions under other statutes as “equitable” without regard to the cleanup doctrine. E. g., Lynch v. Pan American World Airways, Inc., 475 F.2d 764 (5th Cir. 1973).

249 And cf. the numerous state-court decisions upholding administrative awards of workmen's compensation against civil jury arguments, e. g., Grand Trunk Western Ry. Co. v. Industrial Comm'n, 291 Ill. 167, 125 N.E. 748 (1919).

250 96 S. Ct. 1458 (1976).

251 29 U.S.C. sec. 659(a) (1970).

252 Sec. 10(c), 29 U.S.C. sec. 659(c) (1970).

253 Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200, 1206 (3d Cir. 1974). Accord, Atlas Roofing Co. v. OSHRC, 518 F.2d 990, 1012 (5th Cir. 1975); McLean Trucking Co. v. OSHRC, 503 F.2d 8, 11 (4th Cir. 1974).

254 Sec. 12(j), 29 U.S.C. sec. 661(i) (1970).

255 Sec. 10(c), 29 U.S.C. sec. 659(c) (1970). During a time when the Commission was short a member, it affirmed a number of decisions of administrative-law judges by 1-1 votes. The Fifth Circuit held this practice illegal: Under sec. 661 (e) “official action can be taken only on the affirmative vote of at least two members.” Shaw Constr., Inc. v. OSHRC, 534 F.2d 1183, 1185-86 n.5 (1976). This is probably the correct reading, since to hold the 1-1 vote to be a refusal to review that would permit judicial review of administrative-law judge's decision would be to distort what the Commission purported to do. The practical effect of the Shaw decision is to preclude judicial review until the Commission can muster two votes to affirm or reverse.

256 Sec. 11(a), 29 U.S.C. sec. 660(a) (1970).

257 E. g., Robert T. Winzinger, Inc., 4 OSHC 1475 (1976), giving no reasons but describing the question as “well settled.” But see the contrary decision in Secretary of Labor v. Wetmore & Parman, Inc., OSHRC Docket No. 221 (1973), cited in Dale M. Madden Constr., Inc. v. Hodgson, 502 F.2d 278, 281 (9th Cir. 1974).

258 California Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986, 988-89 (9th Cir. 1975).

259 See Citizens Utilities Co. v. Pollution Control Bd., 9 Ill. App. 3d 158, 289 N.E. 2d 642 (2d Dist. 1972).

260 Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200, 1203 n.3 (3d Cir. 1974).

261 Reflecting a similar adversarial view of the Commission's position, the Third Circuit has allowed that body to oppose the Secretary's appeal from its decision although the affected employer did not. Brennan v. OSHRC (Hanovia Lamp Div.), 502 F.2d 946, 948 (3d Cir. 1974). See also Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1267 (4th Cir. 1974), upholding the Commission's right to argue in support of its decision, stressing its expertise, and adding that the small financial stake of the employer in many cases may leave the Commission as the sole defender of its decisions. But a decision not worth the affected party's trouble is not worth the court's either; the proper response if the respondent fails to appear is a nonprecedential default. Again I should have thought it preferable to hold that a lower tribunal has no standing to argue in support of its order; this is not a case where it is also the prosecutor, as with many federal agencies. The explicit statutory designation of the Commission as a party, sec. 11 (a), 29 U.S.C. sec. 660(a) (1970), does provide a handhold for the court's decision, but it could have been viewed, like the judge's status in appellate mandamus, as purely formal.

Preferable is the Ninth Circuit's holding that the Commission may not object if the Secretary settles a penalty imposed by the Commission: “The administrative structure limits the Commission to adjudication.” Dale M. Madden Constr., Inc. v. Hodgson, 502 F.2d 278, 280-82 (1974).

262 Dan J. Sheehan Co. v. OSHRC, 520 F.2d 1036 (5th Cir. 1975).

263 387 U.S. 541 (1967).

264 Brennan v. Gibson's Products, Inc., 3 OSHC 1944 (E.D. Tex. 1976); Rupp Forge Co., 4 OSHC 1487 (N.D. Ohio 1976); Dunlop v. Sandia Die & Cartridge Co., 4 OSHC 1569 (D.N.M. 1976).

265 Dunlop v. Able Contractors, Inc., 4 OSHC 1110 (D. Mont. 1975); Brennan v. Buckeye Industries, Inc., 1 OSHC 1703 (S.D. Ga. 1974).

266 United States v. Biswell, 406 U.S. 311, 316 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970).

267 United States ex rel. Terraciano v. Montanye, 493 F.2d 682 (2d Cir. 1974).

268 Youghiogheny & Ohio Coal Co. v. Morton, 364 F. Supp. 45 (S.D. Ohio 1973).

269 Camara v. Municipal Court, 387 U.S. 523, 535-36 (1967).

270 United States v. Biswell, 406 U.S. 311, 316 (1972).

271 Id.

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