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

No. 83-1182

Office - Supreme Court, Us |

FILED

MAR 21 1984

In the Supreme Court of the Hnites Ste tx

OCTOBER TERM, 1983

THE ENSIGN-BICKFORD COMPANY, PETITIONER

Vv

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,

ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

Rex E. Lee

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

FRANCIS X. LILLY

Deputy Solicitor

KAREN I. WARD

Associate Solicitor

ALLEN H. FELDMAN

Counsel for Appellate Litigation

STEVEN J. MANDEL

Attorney

Department of Labor

Washington, D.C. 20210

QUESTIONS PRESENTED

1. Whether regulation of petitioner's conduct under the

Occupational Safety and Health Act is preempted, under

Section 4(b)(1) of the Act, by virtue of petitioner’s contrac-

tual obligation to comply with a Department of Defense

safety manual.

2. Whether proof of an employer's “plain indifference

to” the Act’s requirements is sufficient to establish a “will-

ful” violation.

3. Whether Section 5(a)(1) of the Act, the general duty

clause, is unconstitutionally vague.

TABLE OF CONTENTS

Page

EE onkceccdtectccccvecscoovecceeenace |

I GU bnc60e00ecccessecnesseceseoevieeves 1

DEE cicececccccccesencccesebacesoesscocens |

DEE uswovccccbesceccccccscccsoncecconccose 5

PE ccbevecececescceccococccessenseceese 13

TABLE OF AUTHORITIES

Cases:

Babcock & Wilcox Co. v. OSHRC,

ET Vocecccssestesccscescnsecsccs 9

Bethlehem Steel Corp. v. OSHRC,

TE Asien Gacdecdesevecesoncoessece 11

Carlyle Compressor Co. v. OSHRC,

PE Svs ccebusgsdobdecccecetcsoces 12

Cedar Constr. Co. v. OSHRC, 587 F.2d

SP UREELG ECO ReK00 obec cucesccdcosodes 9, 10

Central Soya de Puerto Rico, Inc. v. Secretary

SLE TE Se c6cscccccecopsesseces 12

Clary v. Ocean Drilling & Exploration Co.,

PEM WenCcosccuccccccccceccesceens 8

Columbia Gas of Pennsylvania,Inc. v. Marshall,

DT cindutcnabesepsecccevenkes 5,7,8

Donovan v. Royal Logging Co.,

DUPED wencpcececoccccoscccccodcoeccs il

Donovan v. Texaco, Inc., 720 F.2d 825 ......... 8

Empire- Detroit Steel Division v. OSHRC,

579 F.2d 378 eee eee eee ee eee eee ee eeeneeee 9, 12

(ill)

| |

IV

Page

Cases—Continued:

F.X. Messina Constr. Corp. v. OSHRC,

og a ee ere 9

Faultless Division v. Secretary of Labor,

SPEED. cebsniscakectesnvecescbaviex 11

Frank Irey, Jr., Inc. v. OSHRC,

519 F.2d 1200, adhered to en banc,

$19 F.2d 1215, aff'd, 430 U.S. 442 ............ 9

Gearhart-Owen Industries, Inc., 2 O.S.H.

SET EEE “Spb ccneh sbnencedocveescers 7

Georgia Electric Co. v. Marshall,

DUET bi néecesescasacdestesetpees 9, 11

Getty Oil Co. v. OSHRC, 530 F.2d 1143 ...... 12

Haas & Haynie Corp., 4.0.S.H. Cas.

DEE cabdossibahsthaeetenceccvescceus 7

Intercounty Constr. Co. v. OSHRC,

$22 F.2d 777, cert. denied, 423 U.S.

SOE -UUnwisbasacheccevadhpretdsescucesi 9, 10

Kent Nowlin Constr. Co. v. OSHRC,

PED Veccwen vsnbd dabpectVaceestuesé 2

L.R. Willson & Sons, Inc. v. Donovan,

EES acccnbbondscdhecsdaevadacsseows 9

Luhr Bros., Inc., 5 O.S.H. Cas. (BNA)

EEE Ehhwapdiboccsucenestbotnevasancesee 6,7

McLean Trucking Co. v. OSHRC,

DEAE oh.096005065n.05.0sb0 seed eetentnes 11

National Realty & Constr. Co. v. OSHRC,

GP a BONS oscccdesaccaccigdaanenenen 2, 12

Page

Cases—Continued:

National Steel & Shipbuilding Co. v. OSHRC,

GOs Fi DON cb Wecendencccscceenesécesscese 9

Organized Migrants in Community Action, Inc.

- § }* 8) Beers 5,8

PBR, Inc. v. Secretary of Labor, 643 F.2d

GO. Sen ecscdccdbwddderusvedecneccesse ces A

Ryder Truck Lines, Inc. v. Brennan,

Gee OE GED wc ecsedcwcececcconcescvecenes 11

Seagram & Sons, Inc. v. Hostetter,

Fe le BE Edd ceeeneer eh ehnsscccccoccess 11

Southern Ry. v. OSHRC, 539 F.2d 335,

Gast. GomiaG, GID UB. FHP ccccccscccccccccess 7

Titanium Metals Corp. of America v. Usery,

FUP Weld BED codvccnsdaccncdccusesseseeses 12

U.S. Air, Inc. v. OSHRC, 689 F.2d 1191 ....... 8

Universal Auto Radiator Mfg. Co. v. Marshall,

GEE FRE chdovcvessedosccesshénes cttesses 9

Usery v. Marquette Cement Mfg. Co.,

FOP We TED deve ceacecccbececsecevecencee 12

Western Waterproofing Co. v. Marshall,

576 F.2d 139, cert. denied, 439 U.S.

FES dccpeeecepesconvecavesseccsccedescs 9, 10

Statutes and regulations:

Occupational Safety and Health Act of 1970,

29 U.S.C. (& Supp. V) 651 et seq. :

§ 4(b)(1), 29 U.S.C. 653(b)(1) ...... 4, 5,6, 7,8

§ S(aX(), 29 U.S.C. 654{al(l) ..... eee eeee 2

§ 12(i), 29 U.S.C. (Supp. V) 661(i) .......... 3

VI

Page

Statutes and regulations—Continued:

§ 17(a), 29 U.S.C. 666(a) 20... cc cece e ee eee 8

§ 17(@), 29 U.S.C. 66GB) on cccccccccccces 10

PRR ED va cktacccceneceens 10

FP OU .Giks BD Kh necvccckosecvocdcccscesecest 6

Se Gln POTD cacccccccescsescccccess 5, 6, 7

Miscellaneous:

Subcomm. on Labor of the Senate

Comm. on Labor and Public Welfare,

92d Cong., Ist Sess., Legislative

History of the Occupational Safety

and Health Act of 1970 (Comm. Print

1971)

Sn the Supreme Court of the Hnited States

OcTOBER TERM, 1983

No. 83-1182

THE ENSIGN-BICKFORD COMPANY, PETITIONER

V.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,

ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-10a) is

reported at 717 F.2d 1419. The opinion of the administra-

tive law judge (Pet. App. | la-48a) is digested at 10 O.S.H.

Cas. (BNA) 1639.

JURISDICTION

The judgment of the court of appeals was entered on

September 16, 1983. A petition for rehearing was denied on

October 20, 1983 (Pet. App. 5la-52a). The petition for a

‘ writ of certiorari was filed on January 18, 1984. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner is a manufacturer of explosives and pyro-

technic devices. In 1978, petitioner began producing anti-

tank practice rockets pursuant to a contract with the United

()

4

i

5

al

a eo ee ee eS

2

States Department of Defense (DOD). These test weapons

carried propellant and an igniter; in place of an explosive

charge they had a plastic nose cone containing a pyrotech-

nic mix that burned brightly on impact, indicating whether

a “kill” had been scored. The mix was highly unstable and

could explode if exposed to friction, static electricity, or

heat. Pet. App. 2a, | la-12a.

As part of the production process, petitioner’s employees

were required to fill the nose cones with the pyrotechnic

mix, after which they would vacuum the excess powder

from the cones and seal the mix into each cone with an

adhesive disc. The employees used “pencil vacuums” at-

tached by rubber suction hoses to two vacuum pumps in

order to remove the excess powder. Each vacuum system

contained a collection chamber that was to prevent the

potentially explosive powder from interacting with the fric-

tion, static electricity and heat generated in the pumps. On

September 14, 1978, one of the pumps exploded, scattering

metal fragments that injured six employees, at least one of

them seriously. Pet. App. 2a-3a, 12a.

Later that day, compliance officers from the Occupa-

tional Safety and Health Administration (OSHA) inspected

petitioner’s plant. Following that inspection and subse-

quent interviews with petitioner’s employees, the Secretary

of Labor issued a citation charging petitioner with willful

violation of Section 5(a)(1) of the Occupational Safety and

Health Act of 1970 (the Act), 29 U.S.C. 654(a)(1), the

“general duty clause,” based on its failure to prevent the

'The general duty clause requires that each employer “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.” 29 U.S.C. 654(a)(1). To estab-

lish a violation, the Secretary of Labor must prove that the employer (1)

failed to render its workplace free of a hazard that (2) was recc

(3) was causing or likely to cause death or serious harm, and (4) was

amenable to useful and feasible abatement measures. National a

Constr. Co. v. OSHRC, 489 F.2d 1257, 1265-1267 (D.C. Cir.

3

explosive mix from entering the pumps. The citation pro-

posed a $10,000 civil penalty and immediate abatement of

the hazard. Pet. App. 3a.

2. Petitioner contested the citation. Following a hearing,

an administrative law judge (ALJ) affirmed the citation and

proposed penalty (Pet. App. 1 la-48a). The ALJ found that

the Secretary had proved the elements of willful violation

of the general duty clause: petitioner’s collection systems

exposed its employees to the hazard of serious bodily injury

from explosion that could occur when particles of the mix

entered the pumps and ignited; petitioner had notice of the

hazard; the workplace could have been rendered free of the

hazard by feasible measures; and petitioner’s conduct con-

stituted “plain indifference” to the Act's requirements (id. at

14a, 39a-42a).2 The ALJ rejected petitioner’s contentions

that the general duty clause is unconstitutionally vague and

that it cannot support a finding of a willful violation (id. at

42a-47a). The ALJ’s decision became final when the Occu-

pational Safety and Health Review Commission declined to

exercise its discretionary review authority (id. at 49a-5S0a).

See 29 U.S.C. (Supp. V) 661(i).

3. The court of appeals affirmed, one judge dissenting

(Pet. App. la-10a), rejecting each of petitioner’s conten-

tions. The court held first that the general duty clause is not

unconstitutionally vague, since it has been construed to

2In support of his finding that petitioner's violations were willful, the

ALJ noted, inter alia, that: (1) petitioner was aware of, but failed to

follow, all four of the safety standards set out in the Department of

Defense Contractor's Safety Manual For Ammunition, Explosives and

qualifications pertaining to pyrotechnics

and who in turn delegated responsibility to a laborer; and (3) petitioner

compounded the hazard by other defaults, including its failure to empty

or clean the pumps (Pet. App. 39a-42a).

4

require only elimination of preventable hazards likely to

cause death or serious injury to employees (id. at 3a-4a).

The court next determined that OSHA regulation of peti-

tioner’s conduct was not preempted under Section 4(b)(1)

of the Act, 29 U.S.C. 653(b)(1), by virtue of the fact that

petitioner was contractually bound to comply with a DOD

safety manual (Pet. App. 4a). The court reasoned that such

a contractual obligation was not an “exercise [of] statutory

authority to prescribe or enforce standards” that would

justify preemption (ibid., quoting 29 U.S.C. 653(b)(1)).

Rather, “[p]reemption is appropriate only if a federal

agency implements the regulatory apparatus necessary to

replace those safeguards required by the Act” (Pet. App. 4a

(citations omitted)). Finally, the court, accepting the ALJ’s

findings, found sufficient record evidence to establish peti-

tioner’s “plain indifference to,” and thus willful violation of,

its obligations under the general duty clause (id. at Sa-6a).

The court held that petitioner's conduct established a willful

violation even in the absence of any specific aggravating

factor, such asa prior violation of the Act; it concluded that

there were “(sufficient aggravating circumstances” to sup-

port a finding of willfulness where, as here, despite petition-

er’s manufacturing expertise and knowledge of industry

safety standards, it violated those standards “in disregard of

the general duty clause and of the safety of its employees”

(Pet. App. 7a).

Judge Scalia agreed with the majority’s legal analysis, but

dissented because he believed that the record lacked suffi-

cient evidence to support a finding of willful violation (Pet.

App. 8a-10a). He read the record as proving only that

petitioner, in designing and implementing an “inadequate”

collection system, “should have known that the industry

standards had not been met * * * and should have taken

more effective measures to assure compliance” (id. at 10a).

In Judge Scalia’s view, this conduct, without additional

5

“aggravating factors,” constituted a “serious,” rather than a

willful, violation of the Act (id. at 8a, 10a).

‘ ARGUMENT

The court of appeals correctly applied well established

principles developed by the courts under the Occupational

Safety and Health Act to the particular facts of this case.

The court of appeals’ conclusions do not conflict with any

decision of this Court or of any other court of appeals and

do not warrant further review.

1. Petitioner contends (Pet. 7-10) that OSHA lacked

jurisdiction in this case because petitioner was contractually

bound to comply with the DOD Contractor’s Safety Man-~

ual for Ammunition, Explosives and Related Dangerous

Materials (DOD Manual).’ Petitioner relies on Section

4(b)(1) of the Act, 29 U.S.C. 653(b)(1), which exempts from

the Act’s coverage “working conditions of employees with

respect to which other Federal agencies * * * exercise statu-

tory authority to prescribe or enforce standards or regula-

tions affecting occupational safety or health.”

In order to establish Section 4(b)(1) preemption, it is

necessary to show both that another federal agency has

Statutory authority to regulate occupational safety and

health matters and that the agency “exercised” that author-

ity by promulgating regulations. See PBR, Inc. v. Secre-

tary of Labor, 643 F.2d 890, 896 (Ist Cir. 1981); Columbia

Gas of Pennsylvania, Inc. v. Marshall, 636 F.2d 913, 915-

916 & n.7 (3d Cir. 1980); Organized Migrants in Commun-

ity Action, Inc. v. Brennan, $20 F.2d 1161, 1165-1169

(D.C. Cir. 1975). Petitioner has failed to establish either

prerequisite for preemption.

contracts involving the manu-

that the contractor

See 32 C.F.R. 7-104.79. Petitioner's

6

The legislative history indicates that Congress intended

Section 4(b)(1) to apply only to those instances in which a

federal agency possesses statutory authority, either by

express terms or by implication from the statutory pur-

poses, to regulate in the area of occupational safety and

health. See, e.g., Subcomm. on Labor of the Senate Comm.

on Labor and Public Welfare, 92d Cong., Ist Sess. Legisla-

tive History of the Occupational Safety and Health Act of

1970 (hereinafter cited as Leg. Hist.) 997 (Comm. Print

1971) (remarks of Rep. Steiger); id. at 1019 (remarks of

Rep. Daniels); id. at 1204 (remarks of Rep. Perkins). Peti-

tioner has not identified any particular statutory provision

under which DOD is authorized to protect the safety and

health of employees in defense-related industries. DOD

does have statutory authority to promulgate procurement

regulations “to achieve the efficient, economical, and prac-

tical operation of an integrated supply system * * *.” 10

U.S.C. 2202. One of these procurement regulations, 32

C.F.R 7-104.79, requires compliance with the DOD Man-

ual. There is no indication, however, that Congress

intended to vest DOD with authority over worker safety, or

that it intended DOD's general procurement regulations to

preempt OSHA jurisdiction. To the extent DOD regula-

tions affect employee health and safety, that effect is inci-

dental to the primary purpose of efficient procurement. As

the court below noted, to allow preemption here “would

permit any federal agency to dilute, without congressional

approval, the safety standards and remedies contained in

the Act” (Pet. App. 4a (footnote omitted)). The Occupa-

tional Safety and Health Review Commission has held on

three occasions that Section 4(b){ 1) does not bar issuance of

citations under the Act in cases in which another agency's

regulations were promulgated pursuant to general statutory

procurement authority. See Luhr Bros., Inc., 5O.S.H.Cas.

7

(BNA) 1970 (1977); Haas & Haynie Corp., 4 O.S.H.Cas.

(BNA) 1911 (1976); Gearhart-Owen Industries, Inc., 2

O.S.H.Cas. (BNA) 1568 (1975).4

Even if it possessed express statutory authority to regu-

late in the area of employee safety and health, DOD did not

“prescribe or enforce standards or regulations,” as required

for Section 4(b)(1) preemption. In order to oust OSHA

jurisdiction, an agency must actually exercise its authority

by promulgating regulations. See PBR, Inc. v. Secretary of

Labor, 643 F.2d at 896; Columbia Gas of Pennsylvania,

Inc. v. Marshall, 636 F.2d at 915-916 & n.7; Southern Ry.

v. OSHRC, 539 F.2d 335, 336-337 (4th Cir.), cert. denied,

429 U.S. 999 (1976).5 See also Leg. Hist. 1019 (colloquy

between Reps. Erlenborn and Daniels), quoted in Southern

Ry. v. OSHRC, 539 F.2d at 337. Inclusion of safety

requirements in a contract is not equivalent to promulga-

tion of regulations. In PBR, Inc. v. Secretary of Labor, 643

F.2d at 896-897, the First Circuit rejected the contention

that a consulting engineer's safety rules constituted an exer-

cise of the Secretary of Transportation’s rulemaking

authority sufficient to trigger Section 4(b)(1). The court

held, in language equally applicable here, that “an agency

‘The Department of Defense also takes the position that DOD con-

tractors are subject to the Occupational Safety and Health Act. See

Luhr Bros., Inc., § O.S.H.Cas. (BNA) at 1974.

S5DOD's promulgation of 32 C.F.R. 7-04.79, which requires contrac-

tors to comply with the DOD Manual, does not alter the fact that the

i is essentially contractual, not regulatory. The sole remedy

available to DOD for violation of the Manual's safety standards is

contract suspension or termination. See Pet. App. 4a n.3.

may not ‘promulgate’ a ‘rule’ through contractual arrange-

ments.” 643 F.2d at 897.°

Contrary to petitioner's contention (Pet. 9-10), the deci-

sion below is fully consistent with decisions of other courts

of appeals. In each of the cases in which a court has ruled

that the Secretary of Labor was barred by Section 4(b)(1)

from exercising his OSHA authority over working condi-

tions, another agency had actually issued regulations in the

exercise of express or implied statutory authority to regu-

late safety and health in the workplace. See Donovan v.

Texaco, Inc., 720 F.2d 825 (Sth Cir. 1983) (Coast Guard);

U.S. Air, Inc. v. OSHRC, 689 F.2d 1191 (4th Cir. 1982)

(Federal Aviation Administration); Columbia Gas of Penn-

sylvania, Inc. v. Marshall, supra (DOT Office of Pipeline

Safety); Organized Migrants in Community Action, Inc. v.

Brennan, supra (Environmental Protection Agency). See

also Clary v. Ocean Drilling & Exploration Co., 609 F.2d

1120 (Sth Cir. 1980) (Coast Guard).

2. Petitioner next contends (Pet. 1 1-14) that the court of

appeals erred in holding that petitioner's “plain indiffer-

ence” to its obligations under the general duty clause estab-

lished a “willful violation” of the Act.’ The court of appeals’

*Contrary to petitioner's suggestion (Pet. 8), there is no inconsistency

in the ALJ's reliance on the DOD Manual as evidence of expert opinion

on safety matters, despite the fact that it is not a regulation for purposes

of Section 4(b)( 1) preemption. The two issues with respect to which the

ALJ considered the Manual — the legal question of the authority of the

agency and the evidentiary question of expert opinion on personnel

safety in the manufacture of explosives — are quite different.

Petitioner cites (Pet. 10) the possibility of inconsistent regulation in

cases like this one. Of course, there was no such inconsistency in this

case, as evidenced by the fact that the ALJ relied in part on petitioner's

breach of standards set out in the DOD Manual in concluding that it

had violated the general duty clause.

"Section 17(a) of the Act, 29 U.S.C. 666(a), provides that an

who “willfully or ” violates the Act may be assessed

penalties of up to $ Act does not include a definition of the

term “willfui.

9

construction of “willfulness” as “an act done voluntarily

with either an intentional disregard of, or plain indifierence

to, the Act’s requirements” (Pet. App. 5a) comports with

the unanimous view of the courts of appeals that have

considered the question. See L.R. Willson & Sons, Inc. v.

Donovan, 685 F.2d 664, 667 n.1 (D.C. Cir. 1982); Universal

Auto Radiator Mfg. Co. v. Marshall, 631 F.2d 20, 23 (3d

Cir. 1980); National Steel & Shipbuilding Co. v OSHRC,

607 F.2d 311, 313-316 (9th Cir. 1979); Georgia Electric Co.

v. Marshall, 595 F.2d 309, 319 (Sth Cir. 1979); Kent Nowlin

Constr. Co. v. OSHRC, 593 F.2d 368, 372 (10th Cir. 1979);

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

Cir. 1978); Empire- Detroit Steel Division v. OSHRC, 579

F.2d 378, 384-385 (6th Cir. 1978); Western Waterproofing

Co. v. Marshall, 576 F.2d 139, 143 (8th Cir.), cert. denied,

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

$22 F.2d 777, 779-780 (4th Cir. 1975), cert. denied, 423 U.S.

1072 (1976); F.X. Messina Constr. Corp. v. OSHRC, 505

F.2d 701, 702 (ist Cir. 1974).

Petitioner suggests that the decision below conflicts with

Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200 (1974),

adhered to en banc, 519 F.2d 1215 (3d Cir. 1975), aff'd on

other grounds, 430 U.S. 442 (1977), in which the court

stated that “{w]illfulness connotes defiance or such reckless

disregard of consequences as to be equivalent to a knowing,

conscious, and deliberate [flouting] of the Act.” 519 F.2d at

1207. However, the Third Circuit has disavowed sugges-

tions that its standard differs significantly from that applied

by the other circuits. Universal Auto Radiator Mfg. Co. v.

Marshall, 631 F.2d at 23; Babcock & Wilcox Co. v.

OSH RC, 622 F.2d 1160, 1167-1168 (3d Cir. 1980). To the

extent that a distinct willfullness standard may survive in

the Third Circuit, it would appear to embody only a differ-

ence in emphasis from those decisions employing the “reck-

less disregard or plain indifference” test; thus, it does not

ite ;'

10

“rise[] to the level of a ‘conflict’ among the Circuits” that

would warrant review by this Court. See Cedar Constr. Co.

v. OSHRC, 587 F.2d at 1305. Indeed, even before the Third

Circuit clarified its standard, this Court twice declined to

review the alleged conflict between the Third Circuit and

the other courts of appeals. See Western Waterproofing Co.

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

v. OSHRC, 423 U.S. 1072 (1976).

Petitioner also contends that the term “willful” must be

defined restrictively to avoid an overlap with the definition

of a “serious violation” (see 29 U.S.C. 666(b) and (j)). But

“serious” violations are defined in terms of the potential

consequences of noncompliance (i.e., existence of substan-

tial probability of serious injury) and knowledge of the

dangerous condition; willfulness, on the other hand, con-

cerns the employer's state of mind and requires knowledge

of both the condition and the requirements of the Act. The

court of appeals’ construction of “willful” thus retains the

distinction between the types of violations described in the

Act.

In any event, the court below appears to have found

“sufficient aggravating circumstances” (Pet. App. 7a) in the

record to support a finding of willfulness, even under the

stringent standard petitioner suggests. The court noted that

petitioner had actual notice of the explosive properties of

the pyrotechnic mix and was aware of accepted industry

standards for the safe collection and disposal of such a mix.

Nonetheless, petitioner repeatedly ignored these standards

by, inter alia, improperly delegating the design and imple-

mentation of a collection system to a worker who had no

experience in this area, failing properly to test the system,

and failing to empty the collection chambers. /d. at Sa-7a.*

3. Petitioner finally contends (Pet. 14-17) that the gen-

eral duty clause is unconstitutionally vague. The court

below, like the other courts that have addressed this issue

(Donovan v. Royal Logging Co., 645 F.2d 822, 831-832

(9th Cir. 1981); Bethlehem Steel Corp. v. OSHRC, 607

F.2d 871, 875 (3d Cir. 1979); Georgia Electric Co. v.

OSH RC, 595 F.2d at 322 n.32), properly rejected this claim

(Pet. App. 3a-4a).

In considering civil remedial legislation such as the

Occupational Safety and Health Act, the purported vague-

ness of a standard is judged in light of its application to the

facts of a case. See Faultless Division v. Secretary of

Labor, 674 F.2d 1177, 1185 (7th Cir. 1982); McLean Truck-

ing Co. v. OSHRC, 503 F.2d 8, 10-11 (4th Cir. 1974);

Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (Sth

Cir. 1974). The statute will pass constitutional muster so

long as it affords reasonable warning of proscribed conduct

in light of common understanding and practice. McLean

Trucking Co. v. OSHRC, 503 F.2d at 10; Ryder Truck

Lines, Inc. v. Brennan, 497 F.2d at 233. Any indefiniteness

may be cured through existing interpretations of the terms

of the statute. See, e.g., Seagram & Sons, Inc. v. Hostetter,

384 U S. 35, 48-49 (1966).°

[petitioner] failed to comply with all four. This speaks eloquently of the

quality of [petitioner's) defaults. One could be an oversight or even

possibly two, but not four out of four.”

- *Petitioner notes (Pet. 15) that a willful violation of the Act may -

result in both civil and criminal penalties. However, criminal penalties

are not available for a violation of the general duty clause. Of course, it

is a civil penalty, not a criminal penalty, that is at issue in this case.

J

12

The courts have universally adopted an objective test for

measuring compliance with the general duty clause. The test

requires the Secretary to prove, inter alia, that the hazard

was recognized and preventable. See National Realty &

Constr. Co. v. OSHRC, 489 F.2d 1257, 1265-1267 (D.C.

Cir. 1973).'° See also note 2, supra. As the court below

noted, “{tJhis standard provides employers with sufficiently

specific notice of the requirements of the general duty

clause” (Pet. App. 3a-4a (citation omitted)). Here, the ALJ

and the court of appeals concluded that petitioner was

aware of both the explosive properties of the pyrotechnic

mix and the accepted industry standards for the safe collec-

tion and disposal of the mix (id. at Sa, 7a, 39a). Thus,

petitioner had sufficient notice under the objective test.

Where objective benchmarks provide an employer with

sufficient notice of the requirements of the Act, a willful

violation can be established by proving reckless disregard

of, or plain indifference to, those requirements. Accord-

ingly, several courts have affirmed findings of willful viola-

tion of the general duty clause. See Central Soya de Puerto

Rico, Inc. v. Secretary of Labor, 653 F.2d 38 (ist Cir.

1981); Empire-Detroit Steel Division v. OSHRC, supra.

Since the record in this case clearly supports the finding that

petitioner exhibited plain indifference to the requirements

of the Act, as measured by objective standards, the finding

of a willful violation was entirely proper.

"Accord, Carlyle Compressor Co. v. OSH RC, 683 F.2d 673, 676 (2d

Cir. 1982); Titanium Metals Corp. of America v. Usery, $79 F.2d 536,

13

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

FRANCIS X. LILLY

Deputy Solicitor

KAREN I. WARD

Associate Solicitor

ALLEN H. FELDMAN

Counsel for Appellate Litigation

STEVEN J. MANDEL

Altorney

Department of Labor

MARCH 1984