Petition — Ensign-Bickford Co. v. Occupational Safety & Health Review Commission

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221182

No. ———

IN THE

Supreme Cuurt of the United States

OCTOBER TERM, 1983

THE ENSIGN-BICKFORD COMPANY,

- Petitioner,

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,

and

RAYMOND J. DONOVAN, SECRETARY OF LABOR,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

JAMES A. WADE *

TIMOTHY F. BANNON

ROBINSON, ROBINSON & COLE

799 Main Street

Hartford, Connecticut 06108

(203) 278-0700

STEPHEN B. CLARKSON

JACK N. GOODMAN

PIERSON, BALL & Dowp

1200 18th Street, N.W.

Washington, D.C. 20036

(202) 331-8566

Attorneys for Petitioner

* Counsel of Record

January 18, 1984

— —

QUESTIONS PRESENTED

Petitioner,* a defense contractor, was found by the

Occupational Safety and Health Review Commission to

have willfully violated the general duty clause of the

Occupational Safety and Health Act of 1970, 29 U.S.C.

§ 654(a) (1). This finding was upheld on review by the

United States Court of Appeals for the District of Co-

lumbia Circuit, despite the lack of evidence of any “ag-

gravating factors” which were previously required before

a finding of a “willful” violation could be made. The

following questions are presented:

1. Whether, under Section 4(b)(1) of the Occupa-

tional Safety and Health Act, 29 U.S.C. § 653 (b) (1),

which provides that the Act will not apply to employees

for whom other federal agencies regulate working con-

ditions, the Occupational Safety and Health Adminis-

tration lacked jurisdiction over Petitioner since the De-

partment of Defense had promulgated safety regulations

covering Petitioner’s activities?

2. Whether an employer may be found guilty of a

“willful” violation of the Occupational Safety and Health

Act based on mere indifference, as found by the court

below, without the aggravating factors or “reckless dis-

regard” or “obstinate refusal to comply” required by the

decisions of other circuits as a prerequisite for finding

willfulness?

3. Whether the finding that Petitioner willfully vio-

lated the general duty clause of the Occupational Safety

and Health Act deprived Petitioner of Due Process as

guaranteed by the Fifth Amendment to the Constitution

in that the statute is too vague to permit a constitutional

finding of a willful violation?

* The Ensign-Bickford Company has the following parent and

affiliated companies: Ensign-Bickford Industries, Ensign-Bickford

Exports, Inc., and Ensign Bickford Realty Corp.

(i)

* .

TABLE OF CONTENTS

QUESTIONS PRESENT RBD ———.——

TABLE OF AUTHORTTIES—————.——.

CONSTITUTIONAL AND STATUTORY PROVI-

EE ee rT

REASONS FOR GRANTING THE WRIT.....................

I. Regulation of Ensign-Bickford by DoD Deprived

II. The Court of Appeals’ Holding that “Willful”

Misconduct May be Found Without Aggravating

Circumstances is Inconsistent with the Act and

Creates a Conflict Among the Circuits

III. The General Duty Clause of the Act Lacks Suffi-

cient Clarity to Permit a Finding of Willful

EES Se ̃ ͤR4.˙

APPENDICES

(iii)

Page

TABLE OF AUTHORITIES

CASES: Page

Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160

, oS CR oe 18

Baltimore & O. R.R. v. OSHRC, 548 F.2d 1052

r a Ly 4 Fee a 9

Cedar Construction Co. v. OSHRC, 587 F.2d 1808

JJ 18

Central Soya de Puerto Rico, Inc. v. Secretary of

Labor, 653 F.2d 88 (Ist Cir. 1981) 17

City of New York v. Saper, 386 U.S. 328 (1949) 10

Columbia Gas of Pennsylvania, Inc. v. Marshall,

686 F.2d 918 (8d Cir. 1960)................................. 9-10

Commissioner v. Bilder, 869 U.S. 499 (1962) 14

Diamond Roofing Co. v. OSHRC, 528 F.2d 645

r NOES TEE ca as SI SOREN 16

Diebold, Inc. v. Marshall, 585 F.2d 1827 (6th Cir.

ES A 15, 16

Empire-Detroit Steel Division v. OSHRC, 579 F.2d

ZII 17

Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200

(3d Cir. 1974), aff'd en banc, 519 F.2d 1215 (3d

Cir. 1975), aff'd on other grounds sub nom.

Atlas Roofing Co. v. OSHRC, 480 U.S. 442

—ͤ —A—Aqin. . 11, 12, 18

Georgia Electric Co. v. Marshall, 595 F.2d 309

. T 12, 18, 16

Grayned v. City of Rockford, 408 U.S. 104 (1972).. 15

Intercounty Construction Co. v. OSHRC, 522 F.2d

777 (4th Cir. 1975), cert. denied, 423 U.S. 1072

or A its! 18

Kropp Forge Co. v. Secretary of Labor, 657 F.2d

YE | re Bee 15, 16

Lloyd C. Lockrem, Ine. v. United States, 609 F. 2d

R 15, 16

National Mutual Insurance Co. v. Tidewater Trans-

fer Co., 887 U.S. 882 (1966) 14

National Steel and Shipbuilding Co. v. OSHRC,

607 F.2d 811 (9th Cir. 1979 18

TABLE OF AUTHORITIES—Continued

Page

Organized Migrants in Comunmity Action, Inc. v.

Brennan, 520 F.2d 1161 (D.C. Cir. 19755 10

Papachristou v. City of Jacksonville, 405 U.S. 156

(1976) ... 15

Pratt & Whitney Aircraft v. Secretary of Labor,

bP, § f: GC: | 16

Reed v. Franke, 297 F.2d 17 (4th Cir. 1961) ~....... 7

Smith v. Goguen, 415 U.S. 566 (1974) ................. 15

Southern Pacific Transportation Co. v. Usery, 589

F.2d 886 (5th Cir. 1976), cert. denied, 484 U.S.

874 (1977) 4 10

Southern Ry. Co. v. OSHRC, 589 F.2d 335 (4th

Cir.), cert. denied, 429 U.S. 999 (1976) ............ 10

St. Joe Minerals Corp. v. OSHRC, 647 F.2d 840

(8th Cir. 1981) 18

U.S. Air, Inc. v. OSHRC, 689 F.2d 1191 (4th Cir.

RRA SET. Nee SE . Q

United States v. National Dairy Products Corp.,

872 U.S. 29 (1963) 15

United States v. Ruzicka, 329 U.S. 287 (1946) ...... 10

Universal Auto Radiator Manufacturing Co. v.

Marshall, 681 F.2d 20 (8d Cir. 1980) 18

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS:

United States Constitution, Amendment ............ passim

5 U.S.C. § 801 7

10 U.S.C. § 2202 7

28 U.S.C. § 1254 (1) 2

Occupational Safety and Health Act of 1970:

Section 4(b) (1), 29 U.S.C. § 658 (b) (1) ......... passim

Section 5 (a), 29 U.S.C. § 664(a) 2, 4,15

Section 5(b), 29 U.S.C. § 654(b) —................ 15

Section 11 (a), 29 U.S.C. § 660 (as 5

Section 17(a)-(c), 29 U.S.C. § 666(a)-(c).... 2, 4, 9,

11, 12

Section 17(k), 29 U.S.C. § 666 (777 12

TABLE OF AUTHORITIES—Continued

Page

Defense Acquisition Regulations, codified in 32

C.F.R. Ch. 1, subch. A:

DAR { 1-8238.1 ..“ 7

DAR { 7-104.79 7

OTHER AUTHORITIES:

Department of Defense Contractor’s Safety Man-

ual for Ammunition, Explosives and Related

Dangerous Materials (DoD Manual 4145.26M) ..passim

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No.

THE ENSIGN-BICKFORD COMPANY,

Petitioner,

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,

and

RAYMOND J. DONOVAN, SECRE”'ARY OF LABOR,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

The Ensign-Bickford Company (“Ensign-Bickford”)

petitions that a writ of certiorari issue to review the

opinion and judgment in this case of the United States

Court of Appeals for the District of Columbia Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App. A)! is re-

ported at 717 F.2d 1419 (D.C. Cir. 1983). The decision

of the Administrative Law Judge of the Occupational

Safety and Health Review Commission (“OSHRC”)

(App. B) and the OSHRC Order denying review (App.

C) are unreported.

1 App. refers to the Appendices to this Petition.

JURISDICTION

The judgment of the court of appeals was entered on

September 16, 1983. A timely petition for rehearing

and a suggestion for rehearing en banc were denied on

October 20, 1983 (App. D). The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitu-

tion states in pertinent part:

“No person shall be . . . deprived of life, liberty, or

property, without due process of law... .”

Section 4(b) (1) of the Occupational Safety and Health

Act of 1970 (the “Act’), 29 U.S.C. § 653 (b) (1), states

in pertinent part:

“Nothing in this chapter shall apply to working con-

ditions of employees with respect to which other

Federal agencies . . . exercise statutory authority

to prescribe or enforce standards or regulations af-

fecting occupational safety or health.”

Section 5(a) of the Act, 29 U.S.C. § 654(a), states:

“Each employer—

(1) shall furnish to each of his employees employ-

ment and a place of employment which are free from

recognized hazards that are causing or are likely to

cause death or serious physical harm to his em-

ployees ;

(2) shall comply with occupational safety and health

standards promulgated under this chapter.”

Section 17 (a)-(e) of the Act, 29 U.S.C. § 666(a)-(c),

states:

“(a) Any employer who willfully or repeatedly vio-

lates the requirements of section 654 of this title,

any standard, rule, or order promulgated pursuant

to section 655 of this title, or regulations prescribed

pursuant to this chapter, may be assessed a civil

penalty of not more than $10,000 for each violation.

“(b) Any employer who has received a citation for

a serious violation of the requirements of section 654

of this title, of any standard, rule, or order promul-

gated pursuant to section 655 of this title, or of any

regulations prescribed pursuant to this chapter, shall

be assessed a civil penalty of up to $1,000 for each

such violation.

„(e) Any employer who has received a citation for

a violation of the requirements of section 654 of

this title, of any standard, rule, or order promul-

gated pursuant to section 655 of this title, or of

regulations prescribed pursuant to this chapter, and

such violation is specifically determined not to be of

a serious nature, may be assessed a civil penalty

of up to $1,000 for each such violation.”

STATEMENT OF THE CASE

Ensign-Bickford is a Connecticut manufacturer of ex-

plosive and pyrotechnic devices. In 1978, Ensign-

Bickford was engaged, under contract with the Depart-

ment of Defense (“DoD”), in producing training rockets.

DoD had promulgated safety regulations governing these

operations and Ensign-Bickford had passed a DoD in-

spection of its operating procedures for conformity with

those safety regulations.

The training rocket’s head contained a pyrotechnic

mixture which would “flash” on impact with a target.

Since bulk preparation of the mixture would be a safety

hazard, the actual blending took place at the point of

filling the rocket heads. The two components of the

mixture, a fuel and an oxidizer, were kept in limited

quantities near a head loading machine for blending

just before head assembly.

Once the heads were filled, excess powder was vacu-

umed from an interior lip of the head assembly before

. K

a paper seal was installed. Two vacuum pumps and

connecting lines were kept on a cart in the head assembly

area for this purpose. In one of the pumps, a lubri-

cator designed to place an oil mist in an air line had

been mistakenly installed in place of a trap for the

accumulated powder. A filter modified to serve as a

trap was installed on the other pump. On September

14, 1978, one of the vacuum pumps mechanically failed,

resulting in an explosion which injured several employees

in the area.

This incident became the basis for a citation of

Ensign-Bickford by the Secretary of Labor through

the Occupational Safety and Health Administration

(“OSHA”) for violating the general duty clause of the

Act, 29 U.S.C. § 654 (a) (1). Specifically, the Secretary

charged that Ensign-Bickford willfully failed to provide

adequate means to prevent the flash powder from enter-

ing the vacuum pumps.

Following nine days of trial, an administrative law

judge (ALJ) of the OSHRC found against Ensign-

Bickford, and affirmed the proposed citation and penalty

of $10,000, the maximum permitted under 29 U.S.C.

§ 666(a) (App. B). The ALJ utilized the DoD Con-

tractor’s Safety Manual for Ammunition, Explosives and

Related Dangerous Materials as the exclusive source of

industry standards concerning the handling of the flash

powder. He concluded that Ensign-Bickford’s collection

system failed to meet these standards in four areas. Al-

though the ALJ recognized that Ensign-Bickford had

taken steps to reduce the hazards from handling the

flash powder, he found that its failure to take certain

other steps demonstrated “plain indifference” to the re-

quirements of the Act, a degree of misconduct which

he found was sufficient to establish a willful violation.

A timely petition for discretionary review by the full

OSHRC was denied (App. C) and the ALJ’s decision

became the final decision of the OSHRC on April 12,

1982. Ensign-Bickford then filed a petition for review in

the United States Court of Appeals for the District of

Columbia Circuit, pursuant to Section 11(a) of the Act,

29 U.S.C. § 660(a).

The court of appeals rejected Ensign-Bickford’s argu-

ment that the existence and enforcement by DoD of its

safety requirements (wholly apart from the fact that

Ensign-Bickford had passed a DoD inspection) pre-

empted regulation under the Act. It held that the DoD

Manual did not constitute an “exercise [of] statutory

authority” as defined in 29 U.S.C. § 653 (b) (1), ap-

parently because the remedies available to DoD were

less severe than the penalties available under the Act.

App. 4a-5a.

The court also held that the general duty clause of the

Act was not unconstitutionally vague (App. 3a-4a), and

that a willful violation of that clause could be recog-

nized. App. 7a. Finally, the court found that a showing

of “plain indifference” to OSHA requirements could sup-

port a “willful” violation absent any additional aggra-

vating factors. Id.

In dissent, Judge Scalia pointed out that the structure

of the Act made negligent failure to maintain safety

standards a “serious” violation, thereby requiring that

a “willful” violation be supported by employer miscon-

duct surpassing negligence. This principle was supported

by the cases finding willful violations in other circuits,

all of which had records demonstrating aggravating

factors beyond mere lack of care—which is all that

Ensign-Bickford could be charged with.“ Judge Scalia

noted that requiring evidence of conscious disregard of

employee safety to establish willfulness was particularly

appropriate in dealing with the general duty clause since it

imposed no particular standard of conduct for employers.

2 Ensign-Bickford does not concede that its conduct rose to even

this level, but accepts that finding for the purpose of this pro-

ceeding.

Ensign-Bickford timely filed a petition for rehearing

and suggestion for rehearing en banc. The petition and

suggestion were denied without opinion on October 20,

1982 (App. D).

REASONS FOR GRANTING THE WRIT

There are three aspects of this case which warrant

review by this Court. In the Act, Congress exempted

employers which are subject to occupational safety regu-

lation by another Federal agency. The court of appeals

nevertheless found that Ensign-Bickford was subject to

OSHA regulation despite the detailed regulation of de-

fense contractors’ handling of explosive materials by

DoD. Indeed, the precise activity at issue here—the head

loading process—fell directly within the contractual and

regulatory requirements imposed by DoD and the ALJ

relied on the DoD regulations to affirm the citation. The

court of appeals’ rationale for this ruling has no support

in the statute and represents an unprecedented restric-

tion of the exemption in Section 4(b) (1) of the Act.

This Court has never construed Section 4(b) (1). If

the opinion below stands, an important question of Fed-

eral law will be obscured by the confused and incorrect

approach taken by the court of appeals to avoid the

dictate of the Act. The practical importance of this

question to innumerable defense contractors and other

employers is evident since they will become subject to

regulation of their working conditions by different Fed-

eral agencies with differing mandates and potentially

inconsistent requirements.

Second, although Ensign-Bickford was charged with

a “willful” violation, neither the OSHRC nor the court

below could point to any of the aggravating factors

which other circuits have required to support a finding

of a willful violation of the Act’s general duty clause.

The court’s willingness to find a willful violation in these

circumstances cannot be squared with the Act for it does

away with any distinction between “serious” and “will-

pers

ful” violations and reduces the Act’s three-part division

of violations to two. The court’s holding, as pointed out

by Judge Scalia in dissent, also conflicts with the ap-

proach taken by every other circuit to have addressed

this issue.

Finally, the holding that Ensign-Bickford willfully vio-

lated the general duty clause offends the Due Process

clause of the Fifth Amendment since the statute is too

vague and indefinite to afford employers any notice of

specific requirements of conduct. These issues, which

have divided the circuits, pose important questions con-

cerning the administration of the Act and call for re-

view by this Court.

I. Regulation of Ensign-Bickford by DoD Deprived OSHA

of Jurisdiction

Ensign-Bickford argued before the OSHRC and the

court of appeals that OSHA had no jurisdiction over

this matter because DoD regulated Ensign-Bickford’s em-

ployees’ safety in handling flash powder. This argument

is based on the clear, unequivocal language of Section

4(b) (1) of the Act which states:

“Nothing in this chapter shall apply to working

conditions of employees with respect to which other

Federal agencies. . exercise statutory authority

to prescribe or enforce standards or regulations af-

fecting occupational safety or health.”

The Secretary of Defense is empowered to issue reg-

ulations setting conditions for defense procurement. 5

U.S.C. § 801; 10 U.S.C. § 2202; see Reed v. Franke, 297

F.2d 17, 22 (4th Cir. 1961). Exercising that authority,

the Secretary of Defense established the Defense Ac-

quisition Regulations (DAR), codified in 82 C.F.R. ch.

1, subch. A. Under DAR {ff 1-823.1, 7-104.79, all pro-

curement contracts involving explosive materials must

include a requirement that the contractor comply with

the DoD Contractor’s Safety Manual for Ammunition,

Explosives and Related Dangerous Materials (DoD Man-

ual 4145.26M). Ensign-Bickford’s contract with DoD

contained this clause, requiring Ensign-Bickford to fol-

low over 100 pages of detailed specifications.* DoD of-

ficials inspected Ensign-Bickford’s manufacturing pro-

cedures, including those that were the subject of the

complaint here, and approved them as in compliance with

the Manual. J.A. 425-26.“ Had the DoD inspectors de-

termined that Ensign-Bickford was not in compliance

with the Manual, the contract could have been termi-

nated, production would have ceased, and any possibility

of an accident would have been averted. This action

would have substantially penalized Ensign-Bickford by

depriving it of the profits from its multi-million dollar

contract with DoD.

The most telling evidence of the error committed be-

low is that while the OSHRC and the court of appeals

denied that these extensive DoD regulations deprived

OSHA of concurrent jurisdiction, they relied exclusively

upon the same DoD regulations to supply the “industry

standard” against which Ensign-Bickford’s conduct would

be judged. App. 5a-6a; 16a-17a; 19a-20a. Thus, while

holding that the DoD Manual was of sufficient signifi-

cance to form the basis of affirming the citation against

Ensign-Bickford, the court of appeals denied that the

Manual was an “ ‘exercise [of] statutory authority to

prescribe or enforce standards or regulations’ sufficient

to justify preemption. ...” App. 4a.

The stated rationale for this apparent dichotomy was

that to allow preemption of OSHA jurisdiction “would

permit any federal agency to dilute, without congres-

sional approval, the safety standards and remedies con-

tained in the Act.” Id. (footnote deleted)“ Section

The Manual was introduced into the record before the OSHRC.

J. A. refers to the Joint Appendix in the court of appeals.

The fact that Ensign-Bickford became subject to the DoD

regulations as a result of its contract with DoD does not alter

the fact that its workplace was, at the time the OSHA citation

relates to, directly regulated by DoD.

4(b) (1) of the Act, however, explicitly states that when

another agency regulates occupational safety, there is

no OSHA jurisdiction, thus belying the court of appeals’

contention that preemption of OSHA regulation in these

circumstances lacks Congressional approval.“ Further-

more, the court’s allusion to the inadequacy of the reme-

dies available to DoD (App. 4a n.3) establishes a legal

principle that not only has not been adopted by any

other court, but one that is also based on a thoroughly

illogical premise.

The DoD penalty of contract termination potentially

costs violators millions of dollars in profits. On the

other hand, the OSHA penalty—which the court below

somehow deemed more efficacious as an enforcement tool

—is limited in the first instance to a maximum fine of

$10,000. 29 U.S.C. § 666. Thus, the court of appeals’

decision represents an unprincipled restriction of the ef-

fect of Section 4(b) (1), a holding that will hamper Con-

gress’ effort to avoid duplicative regulation.

The case law interpreting Section 4(b) (1) is as clear

as the statute itself. If:

(1) another Federal 2 having authority over

employee health and safety;

(2) actually exereises that authority;

(3) so as to affect the specific working condition in-

volved in an OSHA citation,

an OSHA citation cannot stand for want of jurisdiction.

U.S. Air, Inc. v. OSHRC, 689 F.2d 1191, 1192-1193 (4th

Cir. 1982) ; Columbia Gas of Pennsylvania, Inc. v. Mar-

* The authority relied on by the court of appeals, Baltimore &

O. R.R. v. OSHRC, 548 F.2d 1052, 1054-55 (D.C. Cir. 1976), does

not support the court’s holding. That decision holds only that con-

current regulation of one aspect of an employer's activities does

not foreclose OSHA regulation of other aspects of its operations.

In the case at bar, however, the DoD Manual was explicitly con-

cerned with the very matters which were the subject of the OSHA

citation.

shall, 636 F.2d 913, 915-916 (8d Cir. 1980); Southern

Pacific Transportation Co. v. Usery, 539 F.2d 386, 389-

391 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977);

Southern Ry. Co. v. OSHRC, 539 F.2d 335, 336-339 (4th

Cir.), cert. denied, 429 U.S. 999 (1976); Organized

Migrants in Community Action, Inc. v. Brennan, 520

F.2d 1161, 1166 (D.C. Cir. 1975). These standards were

not applied below. In rejecting Ensign-Bickford’s claim,

the court examined neither the validity of the statutory

authority under which DoD promulgated safety regula-

tions, nor the validity of its exercise. *

This case represents more than a conflict among

the circuits. When Congress enacted Section 4(b) (1), it

sought to avoid waste by mandating single agency su-

pervision of employee safety. The court below has mud-

dled the administrative scheme and confounded congres-

sional intent so as to invite waste. As in City of New

York v. Saper, 386 U.S. 328, 329 (1949) (Bankruptcy

Act), this is a matter . . of considerable practical im-

portance in the administration of” an area dominated by

Federal action. And, as in United States v. Ruzicka, 329

U.S. 287 (1946) (district courts and the Secretary of

Agriculture), the decision below raises important admin-

istrative questions as to the enforcement authority un-

der the legislation of different Federal bodies.

Moreover, the decision below raises important issues

concerning the personal safety of American employees.

By throwing open the question of which agency super-

vises which work site, the court of appeals’ decision cre-

ates the likelihood of multiple inspections and possibly

inconsistent or conflicting citations. The court of ap-

peals’ decision thus is at odds with both the Congressional

mandate and the holdings of all other courts of appeals

which have considered the effect of Section 4(b) (1). Be-

cause of the importance of this issue to thousands of

work places which may become subject to inconsistent

and duplicative regulation, a writ of certiorari should

issue.

II. The Court of Appeals’ Holding that “Willful” Mis-

conduct May be Found Without Aggravating Circum-

stances is Inconsistent with the Act and Creates a

Conflict Among the Circuits

The court of appeals affirmed the conclusion of the

OSHRC that Ensign-Bickford’s failure to follow certain

procedures evinced “plain indifference” to OSHA require-

ments, but did not point to any so-called “aggravating

factors” demonstrative of an intent to violate the Act.’

The court concluded, however, that these findings sup-

ported a citation for a willful violation of the Act—

permitting the imposition of the most severe penalty

allowed under the Act for a single violation.

The court’s decision disregards the carefully differen-

tiated penalty structure contained in Section 17 of the

Act, 29 U.S.C. § 666. It also directly conflicts with the

definition of “willful” established by the Third Circuit

and with a somewhat different formulation as applied

by other courts of appeals. As such, it represents a

dangerous broadening of the concept of willfulness un-

der the Act and requires review by this Court.

In Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200,

1207 (3d Cir. 1974), aff'd en banc, 519 F.2d 1215 (3d

Cir. 1975), aff'd on other grounds sub nom. Atlas Roofing

Co. v. OSHRC, 480 U.S. 442 (1977), the Third Circuit

established a standard for judging whether an employer’s

conduct would support a willful violation of the statute.

“Willfulness connotes defiance or such reckless dis-

regard of consequences as to be equivalent to a know-

ing, conscious, and deliberate flaunting [sic] of the

Act. Willful means more than merely voluntary ac-

tion or omission—it involves an element of obstinate

refusal to comply.”

Since Ensign-Bickford reasonably believed that its operations

were subject exclusively to DoD regulation, and had passed a DoD

inspection, it would be hard to imagine circumstances in which an

intentional disregard of OSHA requirements by it could be shown.

This construction conforms with the structure of the Act.

Section 17 of the Act, 29 U.S.C. § 666, establishes penalties

for three levels of violations. An employer who receives a

citation for a violation which is deemed not to be serious

may be assessed a penalty of up to $1,000. For a serious

violation, a penalty of up to $1,000 shall be assessed.

Section 17(k), 29 U.S.C. § 666(j), defines a serious vio-

lation as one from which “there is a substantial prob-

ability that death or serious physical harm could result

. . . unless the employer did not, and could not with the

exercise of reasonable diligence, know of the presence of

the violation.” Violations which are caused by lack of

diligence, or negligence, therefore were categorized as

serious by Congress.

For a willful or repeated violation, however, the Act

permits a penalty of up to $10,000, or ten times greater

than that for a serious violation. As Judge Scalia wrote

in dissent, “[s]ince negligent ignorance constitutes a

‘serious violation,’ a ‘willful violation’ presumably re-

quires something more.” App. 8a. By adopting a stand-

ard which permits a finding of a willful violation based

solely on an employer’s omissions, the court of appeals

acted at odds with the Congress’ delineation of three

separate categories of violations, holding, in essence, that

evidence which might demonstrate a serious violation

could, without more, also support a finding of a willful

violation. By contrast, the Third Circuit properly re-

quired evidence of an intent to disregard OSHA require-

ments before a violation could be deemed willful.

In Georgia Electric Co. v. Marshall, 595 F.2d 309, 319

(5th Cir. 1979), the Fifth Circuit adopted a definition

of willfulness somewhat different from the Third Cir-

cuit’s in Frank Irey:

[[Wie define a willful violation as one involving

voluntary action, done either with an intentional

disregard of, or plain indifference to, the require-

ments of the statute.”

Pee?

Fre J

For some time after the Georgia Electric decision,

several counts concluded that the opposing Ire and Geor-

gia Electric views did not constitute a real conflict, but

were more a “difference in emphasis.” See St. Joe Min-

erals Corp. v. OSHRC, 647 F.2d 840, 847-48 & n.18;

Universal Auto Radiator Mfg. Co. v. Marshall, 631 F.2d

20, 23 (3d Cir. 1980) ; Babeock & Wilcox Co. v. OSHRC,

622 F.2d 1160, 1167-68 (3d Cir. 1980) ; Cedar Construc-

tion Co. v. OSHRC, 587 F.2d 1303, 1305 (D.C. Cir.

1978). In each of those cases, however, the conduct at

issue would have satisfied either test for willfulness,

making a decision as to which standard controlled un-

necessary.

The courts which actually have had to decide between

the two standards have labored in their analysis instead

of dismissing the formulations as identical. See National

Steel and Shipbuilding Co. v. OSHRC, 607 F.2d 311, 318-

316 (9th Cir. 1979); Intercounty Construction Co. v.

OSHRC, 522 F.2d 777, 779-780 (4th Cir. 1975), cert.

denied, 423 U.S. 1072 (1976). Those courts have recog-

nized that there is a vast difference between “reckless

disregard” or “obstinate refusal to comply” and “plain

indifference.”

While the seemingly inconsistent standards applied in

defining willfulness may have been of little moment be-

cause cases decided under the “plain indifference” test

have involved plainly egregious conduct, the majority in

the instant case went much further. As Judge Scalia

noted (App. 8a), the cases relied on by the majority all

included the presence of “aggravating factors” such as

a history of violations, deliberate disregard of established

safety requirements, or failure to correct a known dan-

gerous condition. No such factors are present in this

case. Ensign-Bickford, as the majority concedes, took

steps to safely collect and dispose of the flash powder,

but those steps were found insufficient. The majority’s

conclusion that Ensign-Bickford’s omissions, which oc-

curred while it was attempting to comply with DoD

safety requirements, constituted a willful OSHA viola-

tion represents a substantial departure from the ap-

proach taken by other circuits. In contrast to the ma-

jority below, those courts have uniformly demanded evi-

dence which shows some intent to ignore or violate safety

standards—evidence which is entirely lacking in the rec-

ord here.

If the court of appeals’ decision stands, the determina-

tion of what constitutes a willful violation of the Act

will be open to widely conflicting interpretations. As

Judge Scalia commented, the majority’s decision can only

be reconciled with the position of other circuits if “lan-

guage no longer has any meaning. App. 10a. This

Court should resolve the long-standing and now growing

conflict among the circuits which gives rise to this prob-

lem. The decision below renders the statutory distinc-

tion between serious and willful violations meaningless,

despite the vast difference in penalties (including the

possibility of criminal sanctions for willful violations)

between the two, creating a state of legal confusion

which portends nothing but endless litigation and injus-

tice. See Commissioner v. Bilder, 369 U.S. 499 (1962)

(need for uniformity in the enforcement of the tax code).

The question also involves an area uniquely subject to

federal control. The courts of appeals have had ample

opportunity to consider the matter and, after a decade

of decisions, it remains unresolved. Cf. National Mutual

Insurance Co. v. Tidewater Tranefer Co., 337 U.S. 582

(1949). This question, therefore, warrants review by

this Court.

III. The General Duty Clause of the Act Lacks Sufficient

Clarity to Permit a Finding of Willful Violation

The court of appeals’ confusion of the standards for

establishing “serious” and “willful” violations of the Act

creates more than just a problem of statutory construc-

tion; it also raises an issue of constitutional magnitude.

165

Ensign-Bickford was not prosecuted for failure to ad-

here to any of the specific safety regulations enacted

pursuant to the rulemaking authority of Section 5(b)

of the Act, 29 U.S.C. § 654 (b). It did not fail to pro-

vide shoring in a trench of a specific depth; it did not

fail to provide a specific safety device on a specific

machine; it was not remiss in issuing designated safety

equipment to employees performing specified dangerous

tasks. Instead, the Secretary of Labor charged Ensign-

Bickford under Section 5(a)(1) of the Act, 29 U.S.C.

654 (a) (1), the general duty clause, with failing to:

„. .. furnish to each of his employees employment

and a place of employment which are free from

recognized hazards that are causing or are likely

to cause death or serious physical harm to his

employees.

Because the general du‘y clause gives no notice to

employers of what particular conduct is required or

proscribed, the finding that Ensign-Bickford willfully

violated it contravenes the Fifth Amendment’s guar-

antee of Due Process. See Smith v. Goguen, 415 U.S.

566 (1974); Grayned v. City of Rockford, 408 U.S. 104

(1972); Papachristou v. City of Jacksonville, 405 U.S.

156 (1972); United States v. National Dairy Products

Corp., 372 U.S. 29 (1962); Kropp Forge Co. v. Secre-

tary of Labor, 657 F.2d 119, 122 (7th Cir. 1981);

Lloyd C. Lockrem, Inc. v. United States, 609 F.2d 940

(9th Cir. 1979); Diebold, Inc. v. Marshall, 585 F.2d

1327, 1335 (6th Cir. 1978).

The relationship between a vague statute and Due

Process of law is clear. A vague statute creates a sub-

stantial risk that the innocent, absent fair warning,

may be trapped in its unclear provisions. Grayned, 408

U.S. at 108. A willful violation of the Act may result

in both civil and criminal penalties. Therefore, a pro-

vision of the Act for which a willful violation is charged

must be “framed as to provide a constitutionally ade-

quate warning to those whose activities are governed.”

Diebold, 585 F.2d at 1336. See also Lloyd C. Lockrem,

609 F.2d at 940; Kropp Forge Co., 657 F.2d at 122.

The Fifth Circuit has recognized that due to its penal

nature, the Act must be narrowly construed. Diamond

Roofing Co. v. OSHRC, 528 F.2d 645, 650 (5th Cir.

1976).°

As Judge Scalia noted in dissent (App. 9a-10a), the

OSHRC has itself perceived that a greater level of notice

must be required before a willful violation is found, a

distinction evident in Georgia Electric Co. v. Marshall,

595 F.2d 309 (5th Cir. 1979). There, a willful violation

was found for failure to comply with a specific regula-

tion; for a violation of the general duty clause, however,

only a serious violation was found.

The general duty clause on its face certainly does not

appear to provide any clear guidelines for employer

conduct. Although the courts have limited liability under

the Act to “preventable hazards,” as noted by the court

below (App. 3a-4a), they have done nothing beyond

adverting to “industry standards” to specify what con-

stitutes a “recognized hazard” for purposes of establish-

ing civil or criminal liability. Of course, in this case,

Ensign-Bickford had been found by DoD to be in com-

pliance with its regulations, the only industry standards

adverted to by the OSHRC.

Even if one accepts this judicial gloss as a constitu-

tionally sufficient rehabilitation of the vague statutory

language, the unresolvable anomaly remains of a willful

violation of the general duty clause’s vague commands.

Intention and free action are necessary to establish

willfulness. Intention and free action must have an ob-

ject. One must intend to do what the law proscribes

In Pratt & Whitney Aircraft v. Secretary of Labor, 649 F.2d

96, 101 n.2 (2d Cir. 1981), the court noted that for even a serious

violation, the fact of the violation must be “reasonably foreseeable”

to the employer.

or one must intend not to do what the law requires.

Even if it is possible to fail negligently to create the

hazard-free workplace required by the general duty

clause, and therefore incur a serious violation, there can

be no possible finding of an intent to violate a statute

which requires no specific conduct.

To Ensign-Bickford’s knowledge, this issue has not

been considered at all by the court of appeals. The First

and Third Circuit decisions cited by the court below

(App. 7a) upheld willful violations of the general duty

clause, but did not do so by rejecting a challenge based

on the vagueness doctrine of the Fifth Amendment. See

Central Soya de Puerto Rico v. Secretary of Labor, 653

F.2d 38 (Ist Cir. 1981); Empire-Detroit Steel Division

v. OSHRC, 579 F.2d 878 (6th Cir. 1978). This case,

therefore, presents a serious question of the constitu-

tionality of imposing a penalty for a willful violation of

a completely indefinite statute which deserves review by

this Court.

CONCLUSION

For these reasons, a writ: of certiorari should issue to

review the judgment of the United States Court of Ap-

peals for the District of Columbia Circuit.

Respectfully submitted,

JAMES A. WADE *

TIMOTHY F. BANNON

ROBINSON, ROBINSON & COLE

799 Main Street

Hartford, Connecticut 06108

(208) 278-0700

STEPHEN B. CLARKSON

JACK N. GOODMAN

PIERSON, BALL & Dowp

1200 18th Street, N.W.

Washington, D.C. 20086

(202) 331-8566

Attorneys for Petitioner

January 18, 1984 * Counsel of Record

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 82-1649

THE ENSIGN-BICKFORD COMPANY,

Petitioner

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

and RAYMOND J. DONOVAN, SECRETARY OF LABOR,

Respondents

Petition for Review of an Order of the

Occupational Safety and Health Review Commission

Argued May 19, 1983

Decided September 16, 1983

James A. Wade, with whom Timothy F. Bannon and

Stephen B. Clarkson were on the brief, for petitioner.

N. Beth Emery entered an appearance for petitioner.

Robert D. McGillicuddy, Attorney, Department of La-

bor, with whom Dennis K. Kade, Attorney, Department

of Labor, was on the brief, for respondents. Edward H.

Hoban, Attorney, Occupational Safety and Health Re

view Commission, entered an appearance for respondents.

Before WRIGHT and SCALIA, Circuit Judges, and

WEIGEL,” Senior District Judge.

* Of the United States District Court for the Northern District

of California, sitting by designation pursuant to 28 U.S.C. § 294(d).

Opinion for the court filed by Senior District Judge

WEIGEL.

Dissenting opinion filed by Circuit Judge SCALIA.

WEIGEL, Senior District Judge: Petitioner, the Ensign-

Bickford Company, challenges an order of the Occupa-

tional Safety and Health Review Commission (the Com-

mission) finding that petitioner willfully violated the gen-

eral duty clause of the Occupational Safety and Health

Act of 1970 (the Act), 29 U.S.C. § 654(a)(1)2 As a

result of the violation, the Commission imposed a civil

penalty of $10,000 on petitioner. Finding substantial evi-

dence in the record to support the decision of the Commis-

sion that petitioner committed a willful violation of the

Act, we affirm.

Petitioner, engaged in the manufacture of explosives

and pyrotechnic devices, operates a plant in Simsbury,

Connecticut. In the summer of 1978, under contract

with the United States Department of Defense, petitioner

began producing anti-tank test rockets at that plant. Pro-

duction required that the nose cone of each rocket be

filled with a pyrotechnic mix that would burn brightly

upon impact. After filling with the mix, employees of

petitioner would vacuum the excess powder from the

cones and then seal the mix into each nose cone by using

a paper disc. To vacuum the excess powder, employees

used “pencil vacuums” attached by rubber suction hoses

to two vacuum pumps. Each vacuum system contained a

collection chamber to prevent the powder from reaching

the pumps. The mix was highly unstable, and could ex-

plode if exposed to friction, static electricity, or heat, all

1 That section provides:

(a) Each employer—

(1) shall furnish to each of his employees employment and

a place of employment which are free from recognized hazards

that are causing or are likely to cause death or serious physical

harm to his employees[.]

present in the pumps. On September 14, 1978, one of the

two pumps exploded, scattering metal fragments which

injured six employees, at least one seriously.

Later that same day, compliance officers from the Oc-

cupational Safety and Health Administration (OSHA)

inspected petitioner’s manufacturing facility. Based on

that inspection and on subsequent interviews with em-

ployees of petitioner, the Secretary of Labor (the Sec-

retary) issued a citation charging that petitioner will-

fully violated the general duty clause of the Act by fail-

ing to prevent the explosive mix from entering the pumps,

and proposed a $10,000 civil penalty.“ Petitioner con-

tested the citation. The Secretary then filed a formal

complaint before the Commission. After a hearing, the

Administrative Law Judge (ALJ) upheld the citation and

the proposed penalty. The Commission adopted the ALJ’s

decision and order. See 29 U.S.C. § 661(i).

Petitioner raises three primary issues on appeal.

First, petitioner contends that the general duty clause

of the Act, 29 U.S.C. § 654(a) (1), is unconstitutionally

vague. This claim has been rejected by those courts of

appeals which have considered it. See Bethlehem Steel v.

OSHRC, 607 F.2d 871, 875 (3d Cir. 1979); Georgia

Electric v. Marshall, 595 F.2d 309, 322 n.82 (5th Cir.

1979). Furthermore, this Court has construed the gen-

eral duty clause narrowly as requiring only that employ-

ers eliminate “preventable hazards” likely to cause death

or serious injury to employees. See National Realty &

Constr. v. OSHRC, 489 F.2d 1257, 1265-66 (D.C. Cir.

1973). This standard provides employers with suffi-

2 The citation specifically alleged that:

The handling of the flash powder exposed the employees to an

undue hazard, in that in Department 81 the employer did not

provide adequate provisions for preventing the entrance of a

Class B explosive (flash powder) into the duo-seal vacuum

pump.

8 4a

ciently specific notice of the requirements of the general

duty clause. See, e.g., McLean Trucking v. OSHRC, 503

F.2d 230, 233-34 (5th Cir. 1974).

Second, petitioner argues that OSHA regulation of con-

tractors with the Department of Defense is preempted

by a Department of Defense Contractor’s Safety Manual

for Ammunition, Explosives and Related Dangerous Ma-

terials. See Joint Appendix at 489-92. 29 U.S.C. § 653

(b) (1) provides that Inlothing in this chapter len-

forcing OSHA requirements] shall apply to working con-

ditions of employees with respect to which other Federal

agencies * exercise statutory authority to prescribe

or enforce standards or regulations affecting occupational

safety or health.” Petitioner contends that because pe-

tioner’s contract with the Department of Defense re-

quires petitioner to comply with that manual prescribing

standards for petitioner’s manufacturing activities, those

activities are beyond the jurisdiction of the Commission.

The fact that petitioner bound itself in its contract

with the Department of Defense to comply with the De-

partment’s safety manual on explosives manufacture does

not have that effect. Such a contractual obligation does

not constitute an “exercise [of] statutory authority to

prescribe or enforce standards or regulations” sufficient

to justify preemption under 29 U.S.C. § 653 (b) (1). To

hold otherwise would permit any federal agency to dilute,

without congressional approval, the safety standards and

remedies contained in the Act.* Preemption is appropri-

ate only if a federal agency implements the regulatory

apparatus necessary to replace those saf

by the Act. See Baltimore & O. R.R. v. OSHRC, 548

F.2d 1052, 1054-55 (D.C. Cir. 1976); see also Southern

For example, the sole remedy available to the Department of

Defense, after petitioner disregarded the safety standards set

forth in the manual, was to terminate the contract. This stands

in sharp contrast to the civil and criminal penalties provided for

in the Act. See 29 U.S.C. § 666. _

Ry. v. OSHRC, 589 F.2d 335, 386 (4th Cir.), cert. denied,

429 U.S. 999 (1976).

Third, petitioner argues that the record lacks sufficient

evidence to support the ALJ’s finding that petitioner com-

mitted a willful violation of the Act’s general duty clause.

The Act punishes three types of violations of its pro-

visions: ordinary violations, which may be punished by

a fine of up to $1,000, serious violations, for which a

fine of up to $1,000 “shall be assessed,” and willful or

repeated violations, which may be punished by a fine of

up to $10,000. 29 U.S.C. § 666. Although the Act does

not define the term “willful,” courts have unanimously

held that a willful violation of the Act constitutes “an.

act done voluntarily with either an intentional! disregard

of, or plain indifference to, the Act’s requirements.”

Cedar Constr. v. OSHRC, 587 F.2d 1303, 1305 (D.C.

Cir. 1978) ; see L.R. Wilson & Sons v. Donovan, 685 F.2d

664, 667 n.1 (D.C. Cir. 1982) ; Universal Auto Radiator

Mfg. v. Marshall, 631 F.2d 20, 28 (3d Cir. 1980) ; Georgia

Electric v. Marshall, 595 F.2d 309, 319 (5th Cir. 1979);

Kent Nowlin Constr. v. OSHRC, 593 F.2d 368, 372 (10th

Cir. 1979); Empire-Detroit Steel v. OSHRC, 579 F.2d

378, 384-85 (6th Cir. 1978) ; Western Waterproofing Co.

v. Marshall, 576 F.2d 189, 148 (8th Cir. 1978), cert.

denied, 439 U.S. 965 (1979); Intercounty Constr. Co. v.

OSHRC, 522 F.2d 777, 779-80 (4th Cir. 1975), cert.

denied, 423 U.S. 1072 (1976); F.X. Messina Constr.

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

The record sustains the conclusion that petitioner ex-

hibited “plain indifference to” its duties under the Act’s

genera] duty clause. Petitioner had actual and construc-

tive notice of the explosive properties of the pyrotechnic

mix. See Joint Appendix at 487-88. Further, petitioner

was aware of accepted industry standards for the safe

vacuum collection and disposal of such a mix. Nonethe-

less, petitioner repeatedly ignored these standards.

Petitioner improperly assembled the collection chambers

used to collect the excess pyrotechnic mix and prevent it

from entering the pumps. The production manager of

petitioner’s Aerospace Division, although thoroughly fa-

miliar with the design requirements of such collection

systems, delegated the design and implementation of those

systems to a worker who had no expertise in assembling

them, who was unaware of the many devices available

for the safe collection of explosives and pyrotechnics, and

who, as a result, built an improvised collection chamber

which failed to function properly. See id. at 502-03.

Petitioner made no attempt to test the effectiveness of

the collection chambers under production conditions. In-

dustry standards require such a test. See id. at 503-04.

Petitioner’s failure to comply with those standards re-

sulted in petitioner’s failure to discover the inadequacies

of its collection systems.

Additional evidence supporting the finding of willful

violation is the fact that petitioner failed to empty the

vacuum pump collection chambers once per shift, as re-

quired by accepted industry standards. This failure al-

lowed dangerously large quantities of the pyrotechnic mix

to accumulate in the pumps’ collection chambers. In fact,

the ALJ found that the collection chambers were not

emptied at all on either September 11 or 12, 1978. This

failure, he found, may have resulted in an accumulation

of explosive mix in the pumps themselves. See id. On

September 14, 1978, one of the two pumps exploded.

Petitioner: argues that because willfulness requires a

“specific intent” to violate a particular OSHA regulation,

a willful violation of the Act can occur only when an

employer violates a specific OSHA regulation and not

when the general duty clause is violated. Petitioner ar-

gues further that even if a willful violation of the gen-

eral duty clause is possible under the Act, no aggravat-

ing factors exist in this case similar to those upon which

other courts have based findings of willful violation.

Neither contention has merit.

Willful violation of the general duty clause of the Act

is legally cognizable. See Central Soya De Puerto Rico

v. Secretary of Labor, 653 F.2d 38 (Ist Cir. 1981);

Empire-Detroit Steel v. OSHRC, 579 F.2d 878 (6th Cir.

1978). If an employer demonstrates “plain indifference”

towards the safety requirements of the general duty

clause, no further showing is required to establish will-

fulness. An employer need not harbor malicious motives

or possess a “specific intent” to violate a provision of the

Act in order to commit a willful violation. See, e. g.,

Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1167-

68 (3d Cir. 1980) ; Georgia Electric, supra,, 595 F.2d at

318-19; Empire- Detroit Steel, supra, 579 F.2d at 385.

The absence of a specific aggravating factor, such as

prior OSHA violations, does not preclude finding willful

violation of the general duty clause if the finding is

based upon conduct constituting “plain indifference” to-

wards the Act’s requirements. See, e. g., St. Joe Minerals

v. OSHRC, 647 F.2d 840, 848 n.19 (8th Cir. 1981) ;

National Steel & Shipbuilding v. OSHRC, 607 F.2d 311,

317 (9th Cir. 1979); George Hyman Constr. v. OSHRC,

582 F.2d 834, 839-40 & n.10 (4th Cir. 1978). Sufficient

aggravating circumstances exist in the present case to

support a finding of willfulness. Despite petitioner’s ex-

pertise in the manufacture of explosive and pyrotechnic

products and knowledge of the applicable industry safety

standards, petitioner violated those standards in disre-

gard of the general duty clause and of the safety of its

employees. No further showing is required to establish

willful violation of the Act. The decision and order of

the Commission is affirmed.

SCALIA, Circuit Judge, dissenting: I concur in the

court’s legal analysis, but cannot join in the conclusion

that the record contains sufficient evidence to support a

finding of willful violation.

In order to establish the “intentional disregard” or

“plain indifference” necessary for that purpose, it is not

enough to establish that the employer’s negligence was

the cause of the violation. This is evident from the stat-

ute’s definition of “serious violation,” which provides that

that lesser category of offense is not made out if “the

employer did not, and could not with the exercise of

reasonable diligence, know of the presence of the viola-

tion.” 29 U.S.C. § 666(j) (1976). Since negligent ig-

norance constitutes a “serious violation,” a “willful vio-

lation” presumably requires something more.

All of the cases cited by the majority in which the

agency’s assessment of penalties for willful violation has

been sustained involve aggravating factors not present

here: prior citations for the same or similar violations,

see Cedar Constr. Co. v. OSHRC, 587 F.2d 1303, 1305

(D.C. Cir. 1978); Empire-Detroit Steel v. OSHRC, 579

F.2d 378, 382 (6th Cir. 1978); F.X. Messina Constr.

Corp. v. OSHRC, 505 F.2d 701, 702 (Ist Cir. 1974);

or deliberate disregard of a known safety requirement

(often on the mistaken assumption that some other meas-

ure would suffice), see Universal Auto Radiator Mfg. Co.

v. Marshall, 631 F.2d 20, 23 (3d Cir. 1980); Kent Nowlin

Constr. Co. v. OSHRC, 598 F.2d 368, 372 (10th Cir.

1979) ; National Steel & Shipbuilding Co. v. OSHRC, 607

F.2d 311, 317 (9th Cir. 1979); Western Waterproofing

Co. v. Marshall, 576 F.2d 189, 148 (8th Cir.), cert. denied,

439 U.S. 965 (1978) ; Intercounty Constr. Co. v. OSHRC,

522 F.2d 777, 779-80 (4th Cir. 1975), cert. denied, 423

U.S. 1072 (1976); or failure to remedy a visibly dan-

gerous condition known to supervisory personnel, see

Central Soya De Puerto Rico v. Secretary of Labor, 658

F.2d 38, 39-40 (1st Cir. 1981). Assessments for willful

violation have been reversed where no more than the

lack of diligence or adequate care has been shown. See,

e.g., St. Joe Minerals Corp. v. OSHRC, 647 F.2d 840, 848

(8th Cir. 1981) ; Babcock & Wilcox Co. v. OSHRC, 622

F.2d 1160, 1165-68 (3d Cir. 1980).

This court has recognized that violation of the general

duty clause of the Act, as opposed to violation of a spe-

cific regulation issued by the Secretary, raises special

problems of interpretation. See National Realty & Constr.

Co. v. OSHRC, 489 F.2d 1257, 1265-67 (D.C. Cir. 1973).

It poses special problems of proof as well.

As a practical matter . . a more concrete eviden-

tiary showing is required to prove willfulness in the

. . . context [of violation of the general duty clause].

St. Joe Minerals Corp. v. OSHRC, supra, 647 F.2d at

847. This is so because, where a specific action has been

mandated by law, the duty of observance is more promi-

nent and categorical—so the level of inattention neces-

sary to establish “indifference” is less. When, however,

only a general obligation of safe practices is involved, it

must be appreciably clearer, in order to establish will-

fulness, that the requirements for safety were either

known and consciously disregarded, or else not a subject

of the employer’s concern.

This principle seems to have been acknowledged by the

Commission itself. In Georgia Electric Co. v. Marshall,

595 F.2d 309 (5th Cir. 1979), civil penalties were im-

posed after a death occurred by reason of the unfortunate

confluence of two violations: the erection of a steel light-

pole too close to an electrical transmission line, and the

reversal of the control levers on a company crane, 80

that when the lever was pushed in the direction marked

“up” the crane would in fact go down. For the former

violation, which contravened a specific regulation pro-

hibiting the erection of steel poles within ten feet of

transmission lines, the Commission imposed, and the court

10a

sustained, a penalty for w7llful violation; for the latter,

which was a violation of the general duty clause, the

Commission imposed, and the court sustained, a penalty

for serious violation. The major difference, I believe, was

that it was easier to discern “plain indifference” when

an explicit directive of the Commission was violated than

when a general obligation of safety (whether the obliga-

tion to have equipment controls marked properly or the

obligation to follow generally accepted industry safety

standards) was not complied with.

Here, it seems to me nothing was established except

that the employer should have known that the industry

standards had not been met (he has plausibly but erro-

neously claimed, even through this appeal, that they were

met) and should have taken more effective measures to

assure compliance. Ensign-Bickford took steps to design

and implement a vacuum collection system and to collect

and dispose of the pyrotechnic mix, Those steps were in-

adequate, but unless language no longer has any mean-

ing I do not see how “plain indifference” rather than

blamewortly negligence (constituting a “serious viola-

tion”) could have been found.

men,

lla

APPENDIX B

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND

HEALTH REVIEW COMMISSION

No. 78-4945

SECRETARY OF LABOR,

Complainant

THE ENSIGN-BICKFORD COMPANY,

Respondent

AMALGAMATED CLOTHING AND TEXTILE

WORKERS UNION OF AMERICA, AFL-CIO,

Authorized Employee Representative

DECISION

This is an enforcement proceeding by the Secretary of

Labor under the Occupational Safety and Health Act, 29

“USC §§ 657-678. The Commission has jurisdiction be-

cause Ensign is engaged in interstate commerce.

The issues and the holding

Ensign is a manufacturer of explosive and pyrotechnic

products both for military use and for blasting and other

civilian purposes. For the development and manufacture

of these and antecedent items Ensign has operated a

plant in Simsbury, Connecticut, since 1886. It is an ex-

perienced DOD supplier, its Aerospace Division presently

selling about 95% of its production to that agency.

12a

In 1977 DOD invited bids on a proposal that it be

supplied with a quantity of 35 millimeter subcaliber prac-

tice rockets, M73, hereinafter called “the rocket”. The

rocket was designed to train troops in the use of an

actual weapon which it simulated. The actual weapon,

discharged by a single soldier, and is intended to possess

sufficient fire power to destroy a tank. The practice

rocket, also designed by Picatinny, carries, like the actual

weapon, propellent and an igniter; but in place of the

explosive charge it has a plastic nose cone containing

about a gram and a quarter of a specified pyrotechnic

mix which, unconfined, burns brightly on impact for

about two seconds, thus indicating to observers whether

a “kill” has been scored. Confined, however, it could ex-

plode with deadly force.

Ensign bid for and was awarded the contract; and in

due course it set up what it deemed to be suitable produc-

tion lines. On one of these the nose cones, inverted, were

filled with the mix, after which the mix was to be sealed

in by affixing an adhesive paper disc over the bottom of

each cone. In order to make the dise adhere, the rim

of the up-ended cone had to be free of excess mix which

the filling operation left behind. To remove that excess,

Ensign determined to use a vacuum type system of col-

lection in which negative pressure was provided by so-

called “duo-seal” rotary vane pumps. Ensign put one of

these collection systems into operation in about the middle

of August; and on about September first, it put into op-

eration a second. On September 14, 1978, while the first

system was not running, the other exploded, scattering

metal fragments and injuring four young women tend-

ing the two systems and two more who were working

near by. After inspection and investigation OSHA cited

Ensign for willfully violating the general duty clause,

§5(2)(1) of the Occupational Safety and Health Act,

29 USC § 654(a) (1), in that

18a

The handling of the flash powder exposed the em-

ployees to an undue hazard, in that [i]n Department

#31 the employer did not pr vide adequate provi-

sions for preventing the entrance of a Class B ex-

plosive (flash powder) into the duo-seal vacuum

pumps.

To sustain the allegations of the complaint, which

closely tracks the citation, OSHA had to prove: (a) that

Ensign’s vacuum collection systems exposed employees to

the risk that the mix might enter the pumps with the

concomitant danger to them of serious physical harm;

(b) that the hazard was “recognized:, i.e., that Ensign

was chargeable with knowledge of the hazard or that the

hazard was recognized in the industry engaged in manu-

facturing munitions of the general category here in-

volved; and (e) that measures to render the workplace

free of the hazard as recognized were feasible techno-

logically * and economically;* and (d) that Ensign’s vio-

lation was willful within the meaning of §17(a) of the

Act, 29 U.S.C. § 676 (a). Ensign denied the material al-

legations of violation and willfulness, with its main thrust

on the facts devoted to an attempt to show that the in-

juries suffered by personnel were caused by an unforesee-

able petroleum vapor explosion in the second pump, not

by mix which entered the pump and exploded, as alleged.

Ensign also raised various legal defenses, i.e.: (1) that

the general duty clause is so vague that it failed to notify

Ensign as to the nature of the duty sought to be imposed

herein; (2) that the general duty clause claim in prin-

ciple and as here alleged is so vague that it may not

be made the basis for a claim of willfulness; (3) that

1 Usery v. Marquette Cement Manufacturing Co., 565 F.2d 902,

910 (1977) ; REA Express v. Brennan, 495 F.2d 822, 825 (1974).

2 Society of Plastics Industry v. OSAHRC, 509 F.2d 1801, 1808-

1810 (CA 2 1975), cert. den. 421 U.S. 992.

America Textile Manufacturers Institute v. Donovan, —— U.S.

— (1981), 101 8. Ct. 2478, 2490, 2501-2504.

14a

the complaint fails to state a claim upon which relief

can be granted because it fails to allege that the citation

was based on a preventable accident; and (4) that if

Ensign was willful at all, it was willful when it designed

and put each of the collection systems into operation, not

weeks later, when the second pump exploded.

I find that OSHA proved its case by a preponderance

of all of the evidence, both as to violation and as to will-

fulness. I find that Ensign’s collection systems did ex-

pose the employees to the hazard of serious bodily harm

from explosion due to particles of the mix entering the

pumps and there being ignited; that Ensign was charge-

able with notice of the hazard; that by feasible measures

the workplace could have been rendered free of this rec-

ognized hazard; and that the quality of willfulness was

present on September 14, 1978, as alleged. Hence I af-

firm the citation. And the parties having stipulated chat

if there was a violation and if it was willful, the pro-

posed penalty of $10,000 would be appropriate, I affirm

the proposed penalty as well.

Ensign had notice that its performance of the rocket

contract would involve it in the handling of a dan-

gerous instrumentality, i.e., a sensitive pyrotechnic,

with the hazard of serious injury to production

employees.

DOD had notified Ensign as to the dangerous com-

ponents and characteristics of the mix from the outset.

As part of the bid package Ensign received the “Major

Component Safety Data Statement” dated November 6,

1975, as supplemented January 7, 1976, and April 6,

1977, collectively marked as Ex. C14. The components of

the mix were three fuels, antimony sulfide, 3.5%, sulfur

10%, and powdered aluminum, 22.5% and an oxidizer,

potassium perchlorate, 64%. As to the characteristics of

15a

the mix, the statement warned that the in-process hazards

classification was 2, which the mix shared with many high

explosives; “detonation”. Ex. C14, 6 Nov. 75, sheet 3,

showed a penetration of 0.272 inches on the test block as

compared with 0.868 inches for TNT; and it contained

special warnings with respect to the aluminum: the

powder “may be easily ignited or initiated to explosion by

discharge of static electricity and when compounded with

oxidizing agents [e.g., potassium perchlorate] ... is a

dangerous fire and explosion hazard:; as a dust, it “may

ignite when exposed to heat or flame or by chemical ac-

tion with oxidizers”; water must be kept away, since

„el volution of hydrogen gas may result in explosion.”

In the statement, Picatinny, the rocket’s designer, summed

up the mix as “extremely sensitive to friction and elec-

trostatic discharge and can be initiated by heat or flame,

and impact. Precautions must be taken to prevent acci-

dental exposure to these stimuli.” Ex. C14, 1975 edition,

sheet 3; 1976 supplement, sheet 2. ä

Furthermore Ensign's own statement as to how the

nose cones were to be loaded admits Ensign's knowledge

as to the hazardous nature of the mix. Headed Process

Specification,“ it consists of the last seven sheets of tze

15-page Exhibit CI. To be sure, it makes no direct ref-

erence to the vacuum collection operation, but it contains

several passages which show that Ensign was aware of

the extremely sensitive nature of the mix once the oxidizer

had been added to the fuels, as was the case with respect

to the excess mix to be collected by the vacuum systems.

Thus the Process Specification requires in Part 5.3 that

in each nose cone the oxidizer and the fuels must be

separately loaded, followed by the warning, “All handling

of mix in its final stage must be done behind barricades,

with operator and equipment properly grounded.” These

provisions were reiterated as follows at the end of Part

6: “NOTE: Due to sensitivity of the final mix the last

component Potassium Perchlorate will not be added until

16a

final loading stage.” And again at the end of Part 7:

“NOTE: Once blended the flash mix is highly sensitive

to initiation by impact, static electricity and friction.”

Since, as appears from the Safety Data Statement, the

mix could detonate with a force roughly equivalent to a

fourth of that generated by TNT, I find that if the mix

reached the pumps and exploded, the resulting hazard

would involve the risk of serious bodily injury or death.

III

OSHA presented a body of expert opinion to the

effect that collection of a pyrotechnic by vacuum ex-

posed employees to the hazard that the pyrotechnic

would be sucked into the pumps and there initiated

to explosion, which hazard could feasibly be elimi-

nated by three measures: (a) interposing between

the primary collection source and the pump a “wet”

collection chamber using as the collection medium a

light mineral oil; (b) testing all components before

putting the system into the production line; and (c)

emptying the collection chamber at least once in each

production shift.

In addition OSHA presented expert opinion as to a

closely related measure to free the workplace from

the hazard of personal injury if the mix should enter

the pump and explode: personnel should be shielded

from the pumps and the collection chambers. An

issue as to whether or not Ensign violated the gen-

eral duty clause by omitting such shielding must be

treated as if raised by the pleadings because it was

litigated by consent.

When Ensign was awarded the rocket contract it had

not yet determined what method it would use for loading

the mix into the nose cone, much less what method it

would use to collect excess mix. But as required by the

DOD Procurement Regulations, 32 CFR § 7-104.79(b), it

17a

had agreed as part of the contract that in manufacturing

the rocket it would “comply with DOD Contractor’s Safety

Manual for Ammunition, Explosives and Related Dan-

gerous Materials (DOD Manual 4145.26 M)”, edition of

October 1968, Ex. C5, hereinafter called “the manual.”

Especially in its Part 1500, “Collection and Destruction

Standards for Ammunition and Explosive Material”, the

manual is quite explicit on the measures referred to in

the heading of this Part III.

(a) Collection systems; collectors.

(i) Design and function. A collective system shall be

designed to minimize the accumulation of explosive dust

in parts other than the collection chamber or chambers,

and to prevent pinching explosives, especially in the form:

of dust or thin layers between metal parts. The manual

uses “collection chamber” and “collector” synonamously.

A collection system must include at least one primary

collector and a pump. A primary collector must receive

at least one separate exhaust line from each room requir-

ing vacuum collection, with each exhaust line or “common

header” serving not more than two bays. Wet primary

collectors are preferred; the number of wet primary col-

lectors feeding into a second collector shall be kept to a

minimum” but only two dry primary collectors may be

serviced by a secondary collector, and the pump on each

dry collection system shall be protected by two collection

chambers installed in series. Part 1502(f) (1).

Decisively distinguishing a wet collector from a dry, a

wet collector shall “provide for proper immersion of ex-

plosives, breaking up air bubbles to release air-borne

particles and removal of moisture from the air before it

leaves the collector to prevent moistened particles of ex-

plosives from entering the small piping between the col-

lector and.. . pump.” Part 1502 (f) (5).

(i) Use of collectors. The removal of less sensitive ex-

plosive dusts, such as TNT, tetryl, explosive D, composi-

18a

tion B, and pentolite, should be carried out by a vacuum

system. The preferred type of system should in general

include a “wet collector,” which moistens the dust “close

to the point of origin” and keeps it wet until the dust is

removed for disposal. More sensitive explosives such as

black powder, lead azide, mercury fulminate, tracer, ig-

niter, including compositions and pyrotechnic materials

may be collected in the same manner, provided they are

maintained wet, with the wetting agent “close to the point

of intake.” Vacuum lines from points of application of

vacuum to wet collectors “should be as short as possible.”

Collection of scrap pyrotechnic, tracer, flare and similar

mixtures in No. 10 mineral oil “is required in order to

minimize potential fire and explosion hazard of the ma-

terial. Such materials collected in the dry state

should be placed in an oil containing receptacle at inter-

vals throughout the shift, prior to disposition by burning.”

Part 1502(e), (f) (1).

(b) Testing. “[A]ll new or newly repaired process

equipment for use in hazardous operation shall be ex-

amined and actually tested to assure that it is in safe

working condition” before being placed in routine opera-

tion. “If machinery or equipment does not appear to

function properly, operations shall be discontinued if the

immediate stoppage does not create a new hazard,” Part

307 (a).

(e) Periodic removal of collected material from cham-

ber. “Explosive dust. shall be removed periodically from

the collection chamber at intervals to eliminate unneces-

sary and hazardous concentrations of explosives but not .

less frequently than once every shift.” Part 1502(f) (6).

(d) Shielding of work stations from collection systems.

Additional provisions of the manual express a body of

expert opinion to the effect that the workplace may be

freed from preventable hazard in the event that mix

particles should enter the pump and there explode. “The

19a

cardinal principle to be observed in any location or opera-

tion involving explosives, ammunition, [or] severe fire

hazards . .. is to limit the exposure . . of personnel

[to a minimum number] for a minimum time, to a mini-

mum amount of hazardous material consistent with safe

and effective operation.“ Part 603 (b) (1). Implementing

that broad principle, the manual provides as follows with

respect to collectors such as those in the case at bar, each

having a capacity not exceeding five pounds. “Dry col-

lectors shall not be located in a bay or cubicle where

explosives are present, but should be positioned outside

the building or in a separate cubicle having substantial

dividing walls. while [wlet type .. collectors may

be placed in explosives operating bays or cubicles. .. .”

provided however that [Is] mall aspirator vacuum sys-

tems positioned in close proximity to work stations shall

be shielded.” Part 1502 (f) (4), (8), (g) (3).

To be sure, the pleadings do not raise an issue as to

whether or not Ensign violated the general duty elause by

failing to shield from the collection chambers and pumps

the adjacent work stations of six employees who were

injured in explosion. But when Reilly testified about

segregating, barricading or shielding, Minutes, 806-807;

986-989; 1452-1455, there was no objection as to ma-

teriality. Instead Ensign joined in litigating the point by

cross-examining Reilly and by argument, see Ensign’s

main brief, page 25. See FRCP Rule 15(a), first sentence,

and 3 Moore’s Federal Practice, ed. 1980, page 15-157 ff.,

especially 169-170.

Thus the DOD manual was clearly relevant; and as

such it was generally admissible. Rules 401, 402, FROE.

To be sure, this is not an action to enforce the DOD con-

tract; nor has the manual been incorporated by reference

into any OSHA standard with the force of law. But on

the crux of this general duty clause case, as some evi-

dence of the state of opinion among experts concerned

with the narrow question of personnel safety in the manu-

20a

facture of products which include in their components

military pyrotechnics, it is part of a class of material

generally relied on by the courts and by the Commission

as probative.* Accordingly OSHA presents it as evidence

of the preponderant view.

Of the four rules discussed in Part III hereof, Ensign

does not dispute either the requirement that collection

chambers must be emptied at least once a shift, or

that on two of the three days immediately proceding

the explosion, Ensign failed to empty the chambers.

Ensign does, however, dispute that it violated the

general duty clause in respect of the matters covered

by the other three rules; and in that connection it

advances the following counter-considerations.

(1) Mix entering the pumps would be desensitized

by the lubricating oil within pump chambers, where-

upon the pumps would clog up and stop without

hazard to employees.

*OSHA enforcement proceedings: Army Corps of Engineers

safety “policy”, National Realty & Construction Co. v. Secretary of

Labor, 489 F.2d 1257, 1262 (DC 1978); National Fire Code 1972,

Titanium Metals Corp. v. Usery, 579 F.2d 586, 541 (CA 9 1978).

Tort actions: Army Corps of Engineers safety manual, Fluor Corp.

v. Black, 338 F.2d 830, 882 (CA 9 1964); “nationally recognized

standards concerning the design of highway and railroad crossings,

Boston & Maine Railroad v. Talbert, 360 F.2d 286, 290 (CA 1

1966); American Safety Standards Institute Code on Cableways

and Conveyors, Wallner v. Kitchens of Sara Lee, Inc., 419 F.2d

1028, 1082 (CA 9 1970); “Excerpts from several trade codes and

manuals calling for guarding of floor opening. Spurr v. La

Salle Construction Co., 385 F.2d 322 (CA 7 1967); American

Standards Association Safety Code for Floor and Wall Openings,

Railings and Toeboards, Stanley v. U.S., 847 F. Supp. 1088, 1094-

1095 (Me 1972). See also Dorsey v. Yoder Co., 381 F. Supp. 758,

768-769 (Ed PA 1971) af d 474 F.2d 1839 (CA 8 1978), Contra,

Manhat v. U.S., 220 F.2d 148, 148-149 (CA 2 1954); Mississippi

Power & Light Co. v. Whitescarver, 68 F.2d 928, 980 (CCA 1984).

21a

(2) Testing the collection chambers was adequate

and showed them to be effective in trapping the mix

before it could enter the pumps.

(3) Water was an appropriate liquid collection

medium instead of oil.

(4) Even under the manual, segregating or barri-

cading the pumps and collection chambers from work

stations was required only in respect of “dry” sys-

tems, whereas the systems here were “wet”.

None of these counter-considerations is valid.

(1) Desensitizing the mix in the pump chambers

instead of in impinger-type collection chambers would

materially decrease employee safety.

(2) Testing was grossly inadequate.

(3) Water was not a safe liquid collection medium

for use with the mix.

(4) Even under the manual, seggregating or barri-

from the pumps and collection chambers was an im-

portant safety requirement, here fully applicable.

The above-discussed rules set forth in the manual

express the preponderant expert opinion as to the

safe vacuum collection of the mix herein. Although

Ensign was cognizant of the hazards which the rules

dealt with through its agreement to comply with the

manual, Ensign failed to comply with the rules,

thereby violating the genera] duty clause.

Ensign does not dispute the applicability of Part 1502

(f) (6) of the manual requiring that collection chambers

on vacuum collection systems handling pyrotechnics be

emptied at least once each shift. Compare Ensign brief,

pp. 20-25. Furthermore the following facts are undisputed.

The rocket project in general and the lower and upper

22a

collection systems in particular were operating for at

least one full shift on Monday, September 11th, Tuesday,

September 12th, Wednesday, September 13th, and until

the explosion at about 1 p.m. on Thursday, September

14th, 1978. Neither collection chamber was emptied on

Monday or Tuesday; both were emptied on Wednesday;

and on Thursday at the time of the explosion the lower

system had been shut down to enable the collection

chamber to be emptied, while on the upper system, the

pump on which exploded, the collection chamber had not

been emptied.

In this posture I find that the manual requirement for

emptying the collection chambers at least once a shift

expresses the preponderant expert opinion as to prudent

practice for eliminating from the workplace preventable

hazard; that compliance with the requirement was feasi-

ble technologically and economically; that Ensign knew

of the requirement or was legally chargeable with such

knowledge; and that Ensign failed to comply. This con-

stituted a violation of the genera] duty clause irrespective

of the explosion.“

Ensign disputes that it violated the general duty clause

in respect of the manual rules other than the one as to

emptying collection chambers, and advances the following

counter-considerations.

(1) Any mix which was not retained by the collection

chambers and which passed through to the pumps would

not be initiated to explosion within the pumps, Instead

the mix would be desensitized by the oil in the pump

chambers, whereupon the inert particles would clog the

pumps and bring them to a halt without employee hazard.

(2) Testing the collection systems was adequate. The

lower system, the first implemented, was tested and demon-

5 See the cases discussed in Part VI(c), infra.

23a

strated to be performing effectively its function of trap-

ping the collection mix before the air stream could carry

it to the pumps. Inspection after the test showed mix in

the collection chamber but none in the small diameter pipe

which connected the collection chamber to the pump.

Turning next to the upper system, the upper pump was

tested, demonstrating that it could draw down vacuum.

Furthermore having tested the lower system with satis-

factory results, having operated the lower system for

approximately two weeks without incident prior to putting

the upper system on stream, and McAllister, Aerospace

Division supervisor of production engineering, having in-

structed Mundt, a laborer in the Division, to assemble the

upper system by duplicating from the parts bin the com-

ponents successfully used on the lower system, it was

reasonable to project the lower system test results to the

upper system; and Ensign is entitled to have its compli-

ance with the manual’s testing rule evaluated on the

assumption that these instructions were carried out,

thereby satisfying Ensign’s obligation in the premises.

Ensign brief, page 33.

(3) Water, the substance chosen as the liquid collection

medium for the lower and the upper systems was appropri-

ate: it would dissolve the chlorine in the potassium

perchlorate, the oxidizing component of the mix, while

not creating the hazard that hydrogen gas might evolve

and explode. Hydrogen gas could evolve from a combina-

tion between the water and the powdered aluminum in

the mix, but such gas would not here explode because

the combination would occur within the collection cham-

bers, either of which was part of one of the collection

systems, which systems were open to the atmosphere. Un-

confined hydrogen gas does not explode.

(4) Seggregating or barricading the collection cham-

bers and pumps from all work stations was unnecessary.

Even under the stringent requirements of the manual,

there is an exception in the case of “wet” collectors the ag-

24a

gregate capacity of which does not exceed five pounds.

Ensign’s collectors fell within the exception.

Ensign seeks a final order which would ignore its

failure to comply with the rule with respect to emptying

the collection chamber and would determine that in the

light of these counter-considerations its practices herein

did not violate the general duty clause.

None of Ensign’s counter-considerations is valid.

(1) To be sure, the burden is on OSHA to prove that

a body of expert opinion existed calling for practices in

the vacuum collection of pyrotechnic material, which prac-

tices would feasibly eliminate from the work place em-

ployee hazards known to Ensign or recognized in the

industry engaged in manufacturing products such as the

rocket, and that Ensign failed to implement such prac-

tices. OSHA has made out its prima facie case. It has

shown that the manual is admissible evidence of expert

opinion regarding employee safety in this kind of work,

see Note 4, supra; it has shown that under the theory

underlying the manual’s Part 15 the operation of a rotary

vane vacuum pump could initiate the explosion of pyro-

technic mix particles such as Ensign was here collecting,

and that to keep the particles out of such pumps, im-

pinger-type collection chambers must be interposed be-

tween the primary collection source—here the four pencil

wands—and the pumps. Ensign’s first counter-considera-

tion would negate the manual’s theory. According to En-

sign, no collection chamber is necessary in order to insure

employee safety: collection chambers are needed only to

protect the pumps. Minutes 1372, 1765. In this state of

the proof Ensign must do more than postulate its theory.

It must go forward with proof to show that its postulate,

not the manual rule, sets forth the practice most likely to

bring about employee safety. To be sure it would be a

heavy burden to go forward and demonstrate that mix

25a

particles can be desensitized as effectively by merely per-

mitting them to work their way through a pump“ which

may contain only two ounces of oil for lubricating pur-

poses, Minutes, 1737, as by forcing the particles to bubble

up through the oil bath in an impinger, then to break

the surface, and then to fall back to the bottom of the

impinger through the full depth of the oil bath. Like

wise it would be a heavy burden to show that the mix

particles can be as safely immersed in oil within the

pump chamber with its whirling eccentric rotor operating

at 500 revolutions a minute, its vanes moving in and out

in concert, and its shoes pressing tightly against the

inside of the chamber, as to carry out the immersion for

an unlimited period of time within the stillness of the

impinger, with no moving parts whatsoever.’ The unsub-

According to Reilly, the oil in the pump chambers could have

a desensitizing effect only to the extent that mix particles came

in contact with the oil. Since the oil was present in the pump for

lubrication, not desensitizing, “you would not have the assurance

that it had desensitized as mineral oil in a trap might have done.”

Minutes, 957, 959.

7 Reilly, OSHA’s expert witness, had long years of experience in

the Army in safety mattors pertaining to explosives and pyrotech-

nics, including the vacuum collection thereof, and as a civilian

official of DOD, he held the position of safety director of the entire

Picatinny complex, in which capacity he supervised the safety of

Picatinny’s own manifold operations, which on occasion included

production of the entire supply of a given item, although the main

thrust of Picatinny was in research and development. He also

had long experience in matters of compliance with the manual by

civilian suppliers to DOD; and Reilly is now a very amply qualified

(see Ex. C15) teacher of safety practices and general safety expert

to private industry engaged in manufacturing explosives and pyro-

technics and products, military and nonmilitary, incorporating

them.

Explaining the manual’s philosphy behind its provisions requir-

ing wet chambers on vacuum pump driven systems for collecting

pyrotechnics, Reilly prefaced his opinion by pointing out that

26a

plained that a collection chamber is designed not only as a safe and

convenient receptacle for accumulating and removing the collected

material but also as the means for desensitizing the material and

physically barring it from the pump chambers.

By Mr. Casler:

Q. And what’s the purpose of having a collection chamber

on a vacuum line?

A. Well, to collect the excess powder, for one thing, the powder

that you're trying to remove. ... And of course you want

to make sure that its not getting into your vacuum sys-

tem, itself. So, you usually have a system for attempting

to keep the material from getting into an area that could

cause a problem.

Q. Well, how could powder getting into the pump cause a

problem?

A. Well, the pump itself is a source of heat, impact, friction

and static.

Q. Okay, now how is the pump a possible source of each of

those?

A. Well, the operational area, when you see something ro-

tating in something else, you know you've got friction.

The fact that it’s rotating unless the pump. . is delicately

balanced, you’re going to expect that some of that rota-

tion is partially impact. The fact that you are moving

a material through the air, is static charge. The fact that

you have something separating periodically, is a possible

buildup of static. Let’s see, static, impact, friction, and,

of course, the very fact that it was operating for any

period of time, undoubtedly had to build up some heat

(Minutes, 807-808).

See also MacAllister’s diagrams of a rotary vane vacuum pump,

Ex. C2, p. 3 and Ex. R31. and his explanation of the operation

of the pump. Minutes, 1286-1296. See also excer)ts from the manu-

facturer’s catalog, Exs. C28 and 24.

Reilly produced an example of the collection chamber (Ex. C18)

described in Part 1502(f)(5) of the manual. Known as an im-

pinger (Minutes, 1418), it is listed at page 884 of the 1977 edition

of the standard shopping guide for such devices, Best’s Guide to

Dust and Fume Control Equipment (Ex. C19), with ten suppliers,

including E. I. duPont de Nemours & Co. Best calls it “Collecting

Unit—Particulates—Wet Type“ and summarizes it operation as

one by which “Dust, fume, or mist particles may be precipitated

27a

into a wet sludge by forced contact with water or oil.” According

to Reilly, impingers are obtainable in a variety of sizes, ranging

in price from about 25 to about $100.

The impinger received in evidence is a single cylindrical glass

vessel with an opening in the top closed by a dome shaped airtight

glass stopper. The side of the stopper is pierced by an exhaust

port which is piped to the vacuum pump, and through which the

pump is able to place the vessel under negative pressure. The vessel

is about half filled with the chosen liquid collection medium. At its

apex the stopper is pierced by an integral glass tube. The upper

end is the vessel’s inlet port. (If Ensign had used impingers as the

collection chambers on its lower and upper systems, the two pencil

wands used on each system to pick up the particles of excess mix

would have been piped to the inlet port of each impinger.) The

tube extends downward to a point near the bottom of the vessel,

well below the surface of the liquid collection medium. The impinger

operates as follows. The negative pressure in the vessel creates

negative pressure in the inlet port, resulting in an airstream trans-

porting the particles to be collected. This stream is forced down

through the tube, discharging into the liquid collection medium,

through which it bubbles to the surface where the bubbles break,

allowing the particles to fall into the liquid collection medium

while the air, cleansed and dried by the bubbling process, is drawn,

substantially pure, through the pump and exhausted to atmosphere

(Minutes, 1419-1420; 1430-1431; 1455-1456; 1466). Asked for his

opinion as to whether or not an impinger would have worked here,

Reilly testified

Yes, I believe it would. My opinion is it would, and I think

they would have, in this case, done the job that they were

looking for. Minutes, 1420.

28a

in mind that the distance between “points of application of vacuum

and the wet collections should be as short as possible.”

With the evidence including the rubber tubing which connected

the pencils to the collection chambers,—the red, Ex. RS, had a

length of about ten feet from pencils to chamber and the gray,

Ex. RI (f), about seven and a half feet—Reilly first testified that

the liquid collection medium was too far from the pencils to

qualify the systems as “wet.” Minutes, 892, 1005-1007. Later, he

defined a wet system as one in which “you were collecting the

material under immediate wetting conditions” or “you were putting

the material directly into some sort of bath, rather than collecting

it “dry” Minutes, 1428. Asked at that point how be would set up a

wet collection system for “an operation such as the manufacturing

problem that Ensign-Bickford was confronted with”, Reilly testi-

fled:

Well, the initial collection [of] the powder would have been

dry, but it would have been introduced to a wetting media

[sic] . . . of some sort that would have trapped the particulate

matter while allowing the air to escape.

In view of the finely divided aluminum in the mix, “you would

probably use a different media than water, probably as the manual

suggests, a mineral oil type collection system.” There were ques-

tions and answers, then, as follows:

The Court: And would that have the effect of desensitizing

or moving in the direction of desensitizing the powder?

The Witness: Yes, sir.

The Court: So it would make the collection device mechan-

ically more effective, and it would hopefully add a safety factor

in that it would operate in the direction of desensitizing the

particulate?

The Witness: Yes, sir.

* fe 6 a

The Court: Well, now, do you have an opinion, Mr. Reilly,

as to whether the most appropriate method of collection here

would have been via a dry system as used, or a wet system as

just testified to?

The Witness: I would prefer the wet aystem, sir.

The Court: Why?

The Witness: Because... it would... be going towards

the direction of desensitizing the material, along with collecting

it and keeping it out of the air stream. Minutes, 1429-1430.

29a

On the applicable portions of the manual and on the aggregate

of Reilly’s testing on this point preponderent expert opinion thus

stands for the proposition that in order to qualify as wet collectors,

the chambers on Ensign’s lower and upper systems had to conform

to Part 1502 (f) (5), i.e., in effect they jad to be impingers, with

No. 10 mineral oil as the liquid collection medium. In the premises,

I do not reach the further question as to whether the mere length

of the pencil wand tubings was a further ground for holding that

the collection systems were “dry” rather than “wet.”

Consistent with the sweep of OSHA's evidence on this point it is

noteable that although Murphy thought that the need for impinger-

type collectors was to protect the pumps, not the personnel, he too

felt that the impinger was the device to use to keep vacuum col-

lected particles out of the pump chambers. On cross-examination

he testified that he had viewed the pre-production test on the lower

system, and that in answer to his inquiry MacAllister had described

to him the operation of the collection chamber on the collection

system being tested. To illustrate the device which Murphy said

MacAllister had described to him, Murphy drew a schematic dia-

gram, Ex. C26, of an impinger. Cf. Ex. C18. Murphy then testified

as follows regarding the diagram.

Q. Okay, now where does the air come in on that diagram?

A. To the area I marked (“Jin(").

Q. Okay. And what does it enter there?

A. As I understood it, it enters into a tube—a part of a

mechanism that came down and we put that below the water

Okay and it came down through the mechanism?

Somehow, I don’t—

Through the tube.

Yes.

Okay and it went below the water level?

To the best of my knowledge.

And then what happened

When it—it obviously was bubbling air in there and the

air had to go somewhere and it came back up out and went out

into the pump.

Q. Okay. And what's the purpose of bubbling that air through

that liquid’?

rororo

30a

A. You want the reason why I had it done that way?

Q. Yes.

A. Just good practice in setting up vacuum type equipment

is to „

Q. And how does that bubbling that water through the ma-

terial help in that?

Obviously Mr. Casler meant “bubbling that material through that

water”, and that is the question which Murphy answered as follows:

A. Only in that it will act as an intermediate trap that pulls

the material out.

Q. Okay. And that’s by the operation of the air bubbling

through the water?

A. No.

Q. Well, what's the purpose of having the air bubbling

through the water? :

A. To make sure that your particulate matter comes in under

the water level.

Q. Okay. And what’s the purpose of having the matter—the

particulate matter come in under the water level?

A. To trap as much as possible.

(Minutes, 1765-1766).

Mr. Casler then showed Murphy Ex. RI (b), which was the actual

lower collection chamber retrieved from the debris of the explosion,

and made him admit that the metal piece extending down into the

bowl was solid, not a tube, so that it could not possibly operate as

an impinger—it could not force the incoming airstream transport-

ing the particles to emerge below the surface of the collection medi-

um and bubble to the surface. At that point Murphy volunteered

I’m not sure—

Whereupon the following questions and answers ensued.

The Court: What aren’t you sure of, Mr. Murphy?

The Witness: I’m not sure of what I have drawn here is

representative of what I understood at the time. This,

said the man who was then manager of production of the division,

was not my primary concern.

(By Mr. Casler, resuming) Okay but you've described how

you understood it.

A. That's right. (Minutes, 1766).

$la

stantiated opinions of Murphy, McAllister and Wergen

notably fail to meet these burdens, and Ensign offers no

report of any experiment demonstrating the validity of

its postulate and showing that DOD, consistent with the

stated purpose of the manual,“ could scrap its body of

pertinent safety rules. Since the cost of compliance with

these rules is effectively paid by DOD as part of the price

of the goods, it is reasonable to infer that the rules would

not be in force if preponderant expert opinion did not

deem them of substantial importance to DOD’s program

On redirect Mr. Wade now questioned Murphy as follows.

Q. Okay, now the question I have for you is [L,] based upon

what knowledge did you draw the diagram?

The Court: Are you impeaching him, Mr.—

Mr. Wade: No, I’m just asking him. He drew a diagram. And

I’m asking him based upon what knowledge did he draw it.

The Court: Well, he based it on all his knowledge to date.

Mr. Wade: Well, I want to hear it.

(By Mr. Wade, resuming) This is primarily the way—

The Court: Now, wait a minute, Mr. Murphy. Mr. Wade said

based on what knowledge did you draw that diagram. Now

tell him what knowledge you based that diagram on.

The Witness: On the way I feel a filter should work (Minutes,

1771).

In other words, even though MacAllister hadn’t used an impinger-

type device on the lower system—indeed, MacAllister’s evidence

was that the chamber produced no bubbling (Ex. C2, page 5;

Minutes, 1815)—Murphy was still of opinion that an impinger-

type device was the one to use to keep collected material out of the

pump chamber.

Manual, Part 100. Purpose

The purpose of this manual is to set forth safe practices and

standards for all work performed in connection with DOD contracts

involving ammunition, explosives and related dangerous materials.

This manual also prescribes safe methods, practices, and standards

for insuring continuity for rotecting and safeguarding personnel,

and preventing property damage at contraction operated plants.

$24

of promoting the safety of the employees of its civilian

suppliers.

I find that the preponderent expert opinion was to the

effect that the collection chambers on Ensign’s lower and

upper systems should have been impingers, which would

have provided a means of eliminating preventable em-

ployee hazard, which means was feasible both technologi-

cally and economically.

(2) As the vacuum collection systems were operating

as part of the production line at the time of the alleged

violation, i.e., on September 14, 1978, each system con-

sisted of two primary collection sources—two pencil

wands—piped to a rotary vane vacuum pump drawing

through a makeshift collection chamber, described below.

Ensign asserts no claim that the manual’s requirement

with respect to testing is inapplicable; and it concedes

that neither system was tested under production condi-

tions. Minutes 1334; 1524. Ensign's entire defense to

this item depends on a pre-production test of the lower

system, a defense which falls palpably short of its goal.

According to Ensign, the test demonstrated that the lower

collection chamber was effectively trapping the collected

mix particles within its own bowl, so that none entered

the pump. Thus, urges Ensign, the test results showed

mix particles in the collection chamber bowl, but none in

the short pipe which connected the collection chamber’s

exhaust port with the pump. Minutes, 1312-1313; Ex. C2,

p. 8. But the clean exhaust pipe may have been signalling

no more than that it was efficiently conducting the mix

particles from the collection chamber to the pump. Reilly

pointed out without challenge that-the way to determine

whether the mix was reaching the pump was to tear

down the pump and inspect its insides. Minutes, 819-820.

Failing such support, Ensign’s claim was mere self-

serving speculation.

Furthermore this pre-production test was carried out

with only one vacuum pencil in use instead of two, for

OS eee

which reason MacAllister deemed the test not typical of

which the production runs would show. Minutes, 1349.

Additionally, even if reliable information had been avail-

able as to the effectiveness of the lower system in screen-

ing mix particles from the pump, such information could

not have been validly projected to the upper system. The

power pump was a Watts Model 1402, with a lubricating

oil capacity which MacAllister estimated at a quart, Min-

utes, 1370, 1373, while the upper pump, a Watts Model

1405, had a lubricating oil capacity of only half a pint.

Minutes, 1373. According to MacAllister, because of this

difference, the paths of particulate material which entered

the two pumps was bound to be different. Minutes, 1305.

Finally the collection chambers, also, were quite differ-

ent“ and Ensign made no attempt to equate their respec-

To MacAllister’s knowledge there were no traps available de-

signed for the type of collection which he was implementing. Hence

he determined to improvise a collection chamber from what was

available in Ensign’s parts bin. Ex. C2, p. 4. There he found a

Miller compressed air filter, No. 602-4, Model 4. The exemplar of

the device with which he started is Ex. C20. The purpose of this

device is to protect compressed air driven tools from damage due to

impurities in the airstream. The main parts of the device are a

metal top containing an inlet port marked “in” and an exhaust

port marked out“, a solid metal stud which holds in place a de-

fector”, a filtering “element’, and a “lower baffle’, and a plastic

bowl with a capacity of eight ounces. The device is designed to

operate as follows. Air, entering at the inlet port, is channelled

downwards by the inlet manifold and the deflector in a swirling

motion. the larger particles are thrown off by centrifugal force

and fall between the wall of the bowl and the lower baffle into the

“quiet zone”, a dry area at the bottom of the bowl. The baffle re-

directs the air upwards, forcing it through the filter element which

the the

element and the stud and out the exhaust port. See Exs. C9 and

C11 and Bodenrader at Minutes, 256-264. MacAllister gutted the

inside, leaving only the deflector and the stud, which is integral

with the head. Next he connected the vacuum

84a

airstream would transport the collected particles to the collection

chamber, where they would fall by gravity into the water at the

bottom, while the airstream would continue through the pump,

which would exhaust it to atmosphere. Ex. C2, p. 5. The collec-

tion chamber could not operate as an impinger because transporting

airstream did not discharge below the surface of the liquid collec-

tion medium; and according to MacAllister there was no bubbling,

Id., p. 5, Minutes, 1815. Furthermore MacAllister’s use of water

as the liquid collection medium was expressly forbidden for use

with this mix in Picatinny’s Major Component Safety Data State-

ment, Ex. C14. The actual lower collection chamber, retrieved from

the debris after the explosion, is Ex. Rlb.

The origin of the upper collection chamber, which exploded, is

unclear. According to the statement which he gave to Stewert,

the Compliance Officer, on September 18, 1978, four days after

the explosion, Erie Mundt used the equipment I [MacAllister] gave

to put the trap on the second pump.” However, when it developed

during the course of the investigation that the upper collection

chamber had in fact been improvised from a Miller Compressed

Air Lubricator, Part 606-3, Model 7, MacAllister professed sur-

price; but his testmony at the trial was very vague.

By Mr. Wade:

Q. All right. So, did you give him any instructions about

what other equipment he was supposed to get?

A. Yeah, I guess you could say, I told him to get the equip-

ment you need similar to bottom pump and hook it up.

The Court: Well, did you specify what he should get and

how he should put it together?

The Witness: I don’t recall that exactly.

The Court: Okay.

Q. (Mr. Wade, resuming) Did you go to the room with

him and assist him in actually hooking it up?

A. No, I did not.

Q. After it was hooked up by him, did you go down to the

room and inspect his work to see how he had done?

A. Not that I recall.

Q. All right.

The Court: And did you ever test it before the girls were

turned loose to use it?

The Witness: No, Id d not.

The Court: Okay. Do you know if anybody else tested it?

The Witness: No, I don't.

The Court: Did you instruct anybody to test it?

The Witness: No, I did not.

(Minutes, 1832-1833)

On cross-examination, MacAllister tried to explain what he thought

Mundt would do in carrying out MacAllister’s instructions regard-

ing the upper chamber.

By Mr. Casler

Q. How much experience did you believe that Eric Mundt

had in setting up equipment in an explosive line when you

alleged that you assigned him that task?

A. He had a unit to copy, and I find that he’s a fairly intelli-

gent young man, mechanically inclined—

The Court: He had a what [to] copy, Mr. MacAllister?

The Witness: He had a copy to copy from, the lower pump.

He's a fairly intelligent young man, he works on automobiles.

I think it’s fair to assume that he would know how to attach

something when he already had something to look at. Minutes

1589-1540.

Even if MacAllister’s improvisation for the lower system had

been a fair and reasonable attempt by Ensign to depart from the

manual and break new ground in the design of collection chambers,

Ensign’s reliance on the upper system in the face of MacAllister’s

ignorance as to what Mundt had in fact done in modifying the

lubricator, Minutes, 875, and his failure to take the trouble to find

out, would have been “plain indifference” by Ensign.

There are substantial differences between the lubricator, with

which Mundt started, and the filter as modified by MacAllister for

use as the lower collection chamber. The lubricator is designed to

spray a film of oil into a compressed oil line in order to lubricate

a compressed air driven tool. Its main parts are a metal head con-

taining various subsidiary devices, a plastic bowl with a capacity of

five ounces, the lower part of which is filled with oil, and a tube

which extends from the head into the oil. Air enters at the inlet

port at approximately 100 pounds per square inch. When the

velocity increases by say 2 cubic feet per minute, a bypass opens

allowing additional air to enter the lower area, exerting additional

pressure on the oil. When the bypass closes, the air is forced

through a venturi, which decreases the pressure, allowing oil to rise

36a

tive abilities to trap the collected mix particulate. Hence

even if the pre-production gest of the lower system had

yielded reliable information as to its own efficiency as a

trap, such information may not reasonably be projected

to the upper system, where the explosion occurred.

I find that the collection chambers on Ensign’s lower

and upper vacuum collection systems were for use in

“hazardous operation” and that in the context of the

entire manual the requirement that each system be

“actually” tested “to assure that it is in safe working

condition” means ‘in condition to operate with safety to

adjacent personnel’ not merely ‘with safety to itself.’ Ac-

cordingly I find further that preponderent expert opinion

required that in order to eliminate preventable hazard

from the workplace, the lower and upper collection sys-

tems be tested to demonstrate whether normal production

line operation would trap the collected mix in the collec-

tion chambers and that, in turn, required that after a

test running for the duration of a normal shift, each

pump be disassembled and examined to determine the

presence or absence in the pump chambers of particles of

the mix or particles of an inert material chosen to simu-

late the mix in the test. And finally I find that such test-

through the dip tube and enter the dome, where it drips down,

mixing with the venturi-produced air and leaving as a mist through

the outlet port on its way to the tool to be lubricated. See Boden-

rader, Minutes, 268-277, his diagram, Ex. C12, the manufacturer’s

catalogue, Ex. C10, and Ex. C21, and an exemplar of the device with

which Mundt started in improvising the upper collection chamber.

There is no evidence as to how Mundt modified the lubricator, other

than that he connected the pump to the inlet port and the pencil

wands to the exhaust. Significantly, Mundt did not know “the

difference between a lubricator and a trap for particulates.” Ex.

C18, p. 1. Clearly the record affords no basis for projecting the

results of even the very incomplete test on the lower system as a

means of evaluating the upper system, the one which exploded.

10 See especially manual, Part 307 (a), quoted at p. 8, supra, and

Part 100, quoted in full in Note 8.

37a

ing would have constituted a feasible means of eliminat-

ing such hazard.

(3) Ensign’s above summarized attempted justification

of its use of water instead of oil as the liquid collection

medium in the collection chambers fails. Each collection

chamber had a pathway to atmosphere only through the

adjacent pump, and neither pump could function unless

for a portion of each cycle a part of the pump chamber

containing airstream transporting collected mix particles

was sealed off from the exhaust port, and so altogether

sealed. This is demonstrated by the events of September

14, 1978, when something in the upper pump did not

burn; it exploded violently while the upper pump was

acting as a pressure vessel. Minutes, 780-781; 783; 792;

828. The use of oil as the liquid collection medium in the

collection chambers as the manual required would have

decreased the employee hazard. Reilly, Minutes, 838.

I find that preponderent expert opinion required the

use of No. 10 mineral oil as the liquid collection medium

in Ensign’s collection chambers in order to eliminate pre-

ventable hazard from the workplace, and that such use

was feasible in the premises.

(4) In its counter-consideration with respect to shield-

ing adjacent work stations from the collection chambers

and pumps, Ensign falls into double error; (i) there is

no overall exception to the shielding requirement in favor

of wet collectors with aggregate capacity not exceeding

five pounds; and (ii) Ensign’s collectors were “dry,” not

“wet.” To be sure, Part 1502 (g) (3) provides that “wet

type collectors may be placed in the explosives operating

bays or cubicle provided the quantity of explosives in the

collectors does not exceed five pounds.” Furthermore it is

obvious from Exhibits RI (b) and C21 that the lower and

upper chambers together did not have a capacity of five

pounds of mix, and OSHA makes no contention to the

contrary. But placing the lower and upper systems in the

38a

bay ™ where collection of the excess mix was being car-

ried out positioned those systems “in close proximity to

work stations” * so that Part 1502 (f) (8) required that

such systems “shall be shielded.” Furthermore Ensign’s

collectors were “dry”, not “wet” because they lacked the

centerpiece of the wet collector, i.e., the bubbling device

unequivocally required by Part 1502(f) (5), and the min-

eral oil wet collecting medium required by Part 1502

(f) (2), fifth sentence.

I find that preponderent expert opinion required that in

order to eliminate preventable hazard from the work-

place, the adjacent duty stations where Debra Christen-

sen, Kimberly Charette, Carol Phillips, Katie White, Mary

Mourcault and Dales Elder were working when they were

injured by the explosion should have been shielded from

the collection chambers and pumps.

Ensign failed to comply with any of the three bodies of

expert opinion discussed in Subparts B and C of this

Part IV. For the reasons discussed just above at the end

of Subpart C, neither the lower nor the upper chamber

was an impinger or the substantial equivalent thereof in

terms of employee safety. Also, Ensign failed to test for

the purpose of determining employee safety, and Ensign

failed to shield adjacent workstations from the collection

chambers and the pumps. Since Ensign was cognizant

of the hazards dealt with by the rules through the man-

ual, which it had agreed to comply with, each of these

omissions on Ensign’s part constituted a violation of the

general duty clause.

1 According to Reilly the table at which four girls operated the

pencil wands was an “operating bay.” Minutes, 890.

89a

Ensign’s violations were willful

Ensign’s violations were willful within the meaning of

§17(a) of the Act, 29 USC § 666(a). Of the four rules

contained in the manual which stand for the preponderent

expert opinion on employee safety practice applicable

herein, i.e., the use of impingers as collection chambers,

pre-production testing of the collection systems for em-

ployee safety, the use of mineral oil as the liquid collec-

tion medium in the collection chambers, and shielding

personnel from the collection chambers and pumps, Ensign

failed to comply with all four. This speaks eloquently of

the quality of Ensign’s defaults. One could be an over-

sight or even possibly two, but not four out of four. This

consistent failure to comply negates an inference of over-

sight: instead of oversight it suggests “plain indifference”

to the obligations which the Act imposes on employers,

which is sufficient to constitute “willfulness” within the

meaning of §17(a). A. Schonbek & Co., Inc. v. Donovan,

646 F.2d 799, 800 (CA 2 1981) and cases collected.

Indeed consideration of the record makes a finding of

plain indifference inescapable. How did Ensign, an ex-

perienced manufacturer of munitions for the DOD and of

explosive and pyrotechnic products for the civilian market

get itself into this position of consistent failure to com-

ply? How, after agreeing to be bound by the manual,

did it come to ignore the manual in each particular in

which the manual imposed on it a duty herein? How,

indeed?

The Aerospace Division, which had the responsibility

for manufacturing the rocket, had a production manager

—Murphy—who was so familiar with the impinger that

he could draw a diagram of it from memory and testify

regarding it without notes or prompting. Murphy was so

convinced that the impinger was the form of chamber

best suited for keeping collected material out of the pumps

40a

that he clung to his opinion even in the face of evidence

that Ensign had not used impingers. And how did it

come about that Ensign did not use impingers? Because

Murphy delegated the design and implementation of the

collection systems to MacAllister, whose qualifications in

safety matters pertaining to pyrotechnics were nill“; *

who had no knowledge that there were devices readily

available in the marketplace designed for the safe collec-

tion of explosives and pyrotechnies,“ and who improvised

a chamber for the lower system by gutting a compressed

air line filter which he found in Ensign’s parts bin and

by reversing the airflow direction intended by the manu-

facturer of the filter, thus creating a device which

couldn’t and didn’t produce the bubbling action central to

an impinger. Because for the upper system MacAllister

left it to Mundt, an Aerospace Division laborer, to dupli-

cate the makeshift chamber which MacAllister had im-

provised for the lower system; because MacAllister never

took the trouble to determine that Mundt had in fact not

duplicated the lower chamber but had improvised further,

for the upper system, another nonbubbling chamber which

he concockted from something else in the parts bin, i. e.,

a compressed air supply line lubricator, again with the

airflow direction designed by the manufacturer reversed;

and because Murphy, who knew better, never took the

trouble to determine that neither the lower nor the upper

chamber was an impinger, with its unique safety func-

tions.

Why was Ensign’s failure to empty the collection cham-

bers on Monday and Tuesday, September 11th and 12th,

willful although both chambers were emptied on the 18th

and Ensign was in the process of emptying the chambers

when the explosion occurred on the 14th? Why didn’t

emptying on the 13th and partial emptying on the 14th

18 Pretrial conference Minutes, 119.

14 Ex. C2, p. 4.

4la

show an intention to effect substantial compliance, thus

tending to negate the appearance of “plain indifference?”

Unfortunately for Ensign its failure to empty does not

stand alone: it must be evaluated in the context of En-

sign’s total conduct. Ensign, by failing to use impingers,

had down-graded the chambers from wet collectors to

mere settling chambers, the most primitive form of par-

ticle collector. See Ex. 19, Best’s Guide, at page 884. In

a settling chamber the collected particles drop by gravity

to the bottom of the chamber if it is empty. But if, while

the chamber is full, the pump is creating vacuum at the

top of the chamber as here, then the negative airstream

could carry particles straight through from the make-

shift inlet port of the collection chamber to the make-

shift exhaust port of the collection chamber and straight

into the pump and all its dangers.** Furthermore Ensign

had failed to test the efficiency of the collection chambers

as the manual required, thereby depriving itself of knowl-

edge of the rate at which under conditions of normal

production collected mix particles would move into the

pumps. Operating the vacuum system on the 11th and

12th without emptying could thus have resulted in an

accumulation of mix in the pumps, which was not de-

creased by emptying the collection chambers on the 13th

or by emptying the lower chamber on the 14th, and it

was the upper chamber which exploded. In order to

mitigate its defaults to empty on the 11th and 12th, its

default in substituting settling chambers for wet col-

lectors, and its default in failing to test the efficiency of

collection chambers, Ensign should not only have emptied

the collection chambers on the 13th; it should have

cleaned the pumps. Not having done so, it remained in

willful violation for failure to empty on the llth and

12th.

18 Reilly, Minutes, 885-837, 875, 929.

42a

The case for willfulness with respect to Ensign’s two

remaining defaults is at least equally clear. With respect

to the liquid collection medium, Picatinny’s Major Com-

ponent Safety Data Statement, specific to the mix herein,

expressly warned against the use of water; the manual

expressly required the use of mineral oil; and MacAllister,

who was in charge of setting up the two collection sys-

tems, and who knew enough about the operation of a

rotary vane vacuum pump to draw a diagram of it and

explain it, must have know that the pumps did not pro-

vide a continuously open path to atmosphere. Indeed it

was Wergen, an Ensign technician, who characterized the

upper pump as a pressure vessel when it exploded.** And

with respect to shielding the adjacent work stations from

the collection chambers and the pumps, it was Ensign’s

own Process Specification which required that “All han-

dling of the mix in its final stage must be done behind

barricades. . . .”

None of Ensign’s defenses in law is valid.

(a) The general duty clause is not so vague that, as

here applied, it failed, in violation of the Fifth Amend-

ment, to notify Ensign as to the duty to be imposed. The

seminal case on the interpretation of the general duty

clause is National Realty & Construction Co. v. Secretary

of Labor, 489 F.2d 1257 (CA DC 1978). The court took

as the basis for its rationale the language of Congress

that each employer must furnish employment “free from

hazards. .. .” The court then articulated a

gloss which would prevent cases within this very broad

language from overflowing the limits of the notice re-

quirements of the Fifth Amendment, i.e., pre-violation,

pre-inspection notice to the employer as to the nature of

the duty which § 5 (a) (1) sought to impose on him, and

once an enforcement proceeding under the clause was

% Minutes, 1837.

48a

commenced, notice as to the precise nature of the viola-

tion with which he was charged. Thus the court required

OSHA not only to prove that the hazard was in fact rec-

ognized: the court derived from the statutory expression

“recognized” a requirement that the hazard result not

from idiosyncratic employee conduct but from conduct

which safety experts would foresee and deem feasibly

preventable (pp. 1265-1267); and it required OSHA to

prove these elements as well. In the court’s language,

“an employer is unfairly deprived of an opportunity to

cross-examine or to present rebuttal evidence and testi-

mony when it learns the exact nature of its alleged viola-

tion only after the hearing” (p. 1267).

This principle became further embedded in the inter-

pretation of the Act when other courts sought a solution

for the parallel notice problem created by the Secretary

in seeking to implement by regulation the sometimes

sparse provisions of the Act with the very broad require-

ment of 29 CFR § 1910.132(a) that each employer pro-

vide and require employees to use personal protective

equipment whenever it is necessary by reason of haz-

ards. . . .” Thus in Cape & Vineyard Division v.

OSAHRC, 512 F.2d 1148, 1152 (1975), the First Circuit

recognized the analogous authority of National Realty and

stated and solved the problem in express Fifth Amend-

ment terms, merely restating the general duty clause

formulation “recognized hazard” in terms of “conduct

unacceptable in the light of common understanding and

experience of those working in the industry” and sub-

stituting for the general duty clause expression “prevent-

able hazard” the concept of “an objective test... whether

a reasonably prudent man familiar with the circum-

stances would have protected against the hazard.” More

at length, the Cape and Vineyard rationale was as fol-

lows:

A regulation without ascertainable standards, like

this one, does not provide constitutionally adequate

warning to an employer unless read to penalize only

44a

conduct unacceptable in the light of common under-

standing and experience of those working in the in-

dustry. ° * *

Of course if an employer is shown to have actual

knowledge that a practice is hazardous, the problem

of fair notice does not exist. But in the absence of

actual knowledge, an objective test is whether a rea-

sonably prudent man familiar with the circumstances

of the industry would have protected against the

hazard. See generally National Realty & Construc-

tion Co. v. OSHRC, 160 U.S. App. D.C. 133, 489

F.2d 1257, 1265 & n. 32 (1973). (512 F.2d p. 1152,

footnote omitted)

To the same effect see also Usery v. Marquette Cement

Mfg. Co.; 568 F.2d 902, 909-910 (CA 2 1977); Ryder

Truck Lines v. Brennan, 497 F.2d 230, 233-234 (CA 5

1974). Thus National Realty, reinforced by Cape &

Vineyard, Marquette, and Ryder, states a rule for harmo-

nizing the employer’s right to notice with the public in-

terest in an interpretation of the Occupation Safety and

Health Act broader than the express provisions of the

standards yet within the requirements which a prudent,

experienced employer would nevertheless deem feasible

and appropriate to attainment of the purposes of the

Act. As such the rule requires a holding that the general

duty clause, read to forbid only recognized, feasibly pre-

ventable, hazardous practices and as applicable here, is

not unenforceably vague.

(b) There is no inconsistency between a claim which

arises under the general duty clause, §5(a)(1) of the

Act, 29 USC § 654(a)(1), and a claim of willfulness

under § 17 (a), 29 U.S.C. § 656(a). To be sure, OSHA

in the industry of which the employer

than in the employer himself, and by

preventability within the cognizance of

whereas to prove willfulness, OSHA

45a

element home to the employer himself. But if OSHA can

bring home to the employer himself personal knowledge

of the hazard, personal knowledge of feasible prevent-

ability, and personal knowledge of the contours of the

general duty clause, then the violation of the general duty

clause will be willful. This is illustrated by cases in

which three courts have dealt with general duty clause

claims in which willfulness was alleged. In chronological

order these cases are Empire-Detroit Steel v. Marshall,

579 F.2d 378 (CA 6 1978), Babcock & Wilcox Co. v. Sec-

retary of Labor, 622 F.2d 1160 (CA 3 1980), and St.

Joe Minerals Corp. v. Marshall, 647 F.2d 840 (CA 8

1981). In Empire-Detroit, where the employer used a

method of disposing of molten slag in its steel mill, which

method caused ten major explosions and an employee

fatality and where despite these occurances the employer

continued to use the same method, resulting in two more

explosions which injured ten more employees, the court

found the general duty clause violation willful. In

Babcock & Wilcox the ground surrounding a scrap steel

furnace became flooded with water due to a leak in the

cooling system of an adjoining facility. If the molten

slag in the furnace combined with the water, an explo-

sion could occur. Despite the use of customary proce-

dures to remove the water, there was some water left

when the steel in the tank became ripe for tapping. At

this point Babcock was faced with alternatives, each

potentially dangerous: (1) postpone the tapping until

the water removal was completed, thus avoiding a “run-

Dr * 68 / :

6 A oh ie tut N er * * 1 \ 4 2

3 En ! ůͤm n ̃ Ä a) Pew L ⁰ “ ˙ r me

46a

more thorough in determining the scope of the flooded

area and mobilizing the plant’s resources for getting rid

of the water, the court found that Babcock “did not ob-

stinately refuse to comply with or act in defiance of

safety rules, or proceed with such disregard of conse-

quences as to be equivalent to a knowing or conscious

disregard of, or plain indifference to, or flouting of, the

general duty clause,” 622 F.2d p. 1166. At its lead

smelter in Herculaneum, Missouri, St. Joe had a freight

elevator which carried vehicles and other heavy cargoes.

The elevator had outer and inner doors with an inter-

locking system under which the elevator could not move

unless all doors were closed. The system, however, was

easy to override and when the doors were damaged, as

sometimes happened, the interlock would be bypassed and

the elevator would be moved without all doors being se-

cured. When a door was accidentally injured, Pettus, a

head foreman, called an electrician, who bypassed the

interlocking system. Shortly after learning of the by-

pass, Pettus called the electrician and directed him to

remove the override before the end of the current shift;

but the electrician never returned to the plant and never

notified anyone that he was not carrying out the direc-

tive. Meantime the elevator moved with a “bobcat”

partly on and partly off, killing the driver. The court

concluded that

Although it is clear in hindsight that some risk re-

mained, the petitioner’s conduct falls short of plain

indifference to the general duty clause, 647 F.2d

p. 849.

Both the Third and the Eighth Circuits cited Empire-

Detroit with tacit approval, 622 F.2d 1164-

47a

specified in advance just what measures prudence re-

quired in order to eliminate such hazard from the work-

place.

(e) The complainant did not fail to state a claim upon

which relief can be granted because it did not allege that

the citation was based on a preventable accident. Ensign

raised this defense by motion to dismiss under Rule

12(b) (6). See Ensign’s brief on motion to dismiss pp.

12-15. Before the trial the defense was overruled as a

matter of Law by Order No. 7, pp. 8-11. Since the de-

fense challenges the jurisdiction of the Commission over

the subject matter of the action, the validity of the de-

fense will here be briefly re-examined. In National

Realty, the Court of Appeals for the District of Colum-

bia Circuit pointed out that

To establish a violation of the general duty clause,

hazardous conduct need not actually have occurred

for a safety program’s feasibly curable inadequacies

may sometimes be demonstrated before employers

have acted dangerously.” 489 F.2d p. 1267.

In Brennan v. Vy Lactos Laboratories, 494 F.2d 460,

463 (1974) the Eighth Circuit explained its holding in

part as follows:

Neither the general duty clause nor section 17(a)

[which defines “serious” violations] requires any ac-

tual death or physical injury for a violation to occur.

48a

(1974)—“The statue may well be violated even though

no accident or injury occurs.”

(d) Ensign’s willful conduct continued down to the

moment when the explosion occurred on September 14,

1978. Despite Ensign’s argument te the contrary, Min-

utes, 1468-1489, Ensign’s “plain indifference” did not

end when it implemented the upper system on or about

September 1, 1978. Until the explosion, it continued to

expose its employees to the same known preventable haz-

ards; and in failing to empty the collection chambers and

to clean the pumps, it exposed them to hazard additional

to that which obtained when the lower and then the

upper system was put into production.

As above indicated, the amended citation and the pro-

posed penalty are affirmed.

/s/ Robert P. Weil

ROBERT P. WEIL

Judge, OSHRC

Dated: February 19, 1982

Boston, Massachusetts

49a

APPENDIX C

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND

8 HEALTH REVIEW COMMISSION

1825 K Street, NW

Washington, D.C. 20006

April 19, 1982

CORRECTED COPY

[SEAL]

OSHRC Docket No. 78-4945

IN REFERENCE TO SECRETARY OF LABOR

ENSIGN-BICKFORD COMPANY

NOTICE OF FINAL ORDER

The petition for discretionary review filed by Respond-

ent was received by the Commission on March 10, 1982.

The petition has been considered by the individual Com-

mission Members and no Commission Member has di-

rected review. Therefore, the petition is deemed to be

denied. Rule 90 (b) (3), 29 CFR § 2200.90 (b) (3). Sec-

tion 12 (j) of the Occupational Safety and Health Act of

1970, 29 U.S.C. § 661 (i).

The decision of the Administrative Law Judge became

a final order of the Commission on April 12, 1982.

For The Commission

/s/ Ray H. Darling, Jr.

Ray H. DARLING, JR.

50a N

NOTICE IS GIVEN TO THOSE LISTED BELOW:

For the Secretary of Labor

Baruch A. Fellner, Esq.

Counsel for Regional Litigation

Office of the Solicitor, USDOL

200 Constitution Ave., NW.—Rm. 84014

Washington, D.C. 20210

Albert H. Ross, Esq.

Regional Solicitor, USDOL

John F. Kennedy Federal Bldg.

Government Center—Rm. 1803

Boston, Mass 02203

For Employer

James A. Wade, Esq.

Timothy F. Bannon, Esq.

Robinson, Robinson & Cole

799 Main St.

Hartford, CT 06103

For Employees

Eric Frumin

Amalgamated Clothing & Textile

Workers Union AFL-CIO

770 Broadway

New York, New York 10036

51a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1983

No. 82-1649

THE ENSIGN BICKFORD COMPANY,

* Petitioner

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION, AND RAYMOND

J. DONOVAN, SECRETARY OF LABOR,

Respondents

Filed Oct. 20, 1983

Before: Wright and Scalia, Circuit Judges, and Wei-

gel*, Senior District Judge for the Northern

District of California

ORDER

On Consideration of the Petition for Rehearing of Pe-

titioner, filed September 30, 1983, it is

ORDERED by the Court that the aforesaid Petition is

denied.

Per Curiam

For the Court:

GOR A. FISHER, 5

Clerk

By /s/ Robert A. Bonner

ROBERT A. BONNER 4

Chief Deputy Clerk 7

* Sitting by designation pursuant to Title 28 U.S.C. § 292 (d).

; : .

Ee A SE, PORE ̃¶ VVB . ˙» Ls pe eS

52a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1983

No. 82-1649

THE ENSIGN BICKFORD COMPANY,

1 Petitioner

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION, AND RAYMOND

J. DONOVAN, SECRETARY OF LABOR,

Respondents

Filed Oct. 20, 1983

Before: Robinson, Chief Judge; Wright, Tamm, Wil-

key, Wald, Mikva, Edwards, Ginsburg, Bork,

Scalia and Starr, Circuit Judges

ORDER

The Suggestion for Rehearing en banc of Petitioner,

filed September 30, 1983, has been circulated to the full

Court and a majority of the Judges in regular active

service have not voted in favor thereof. On consideration

of the foregoing, it is

ORDERED by the Court en banc that the aforesaid

Suggestion is denied.

Per Curiam

For the Court:

GEORGE A. FISHER,

Clerk

By /s/ Robert A. Bonner

RoBErRT A. BONNER

Chief Deputy Clerk

Circuit Judges Tamm and Wilkey would grant the

Suggestion for Rehearing en banc.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.