No. 04-4017
=====================================================
IN THE UNITED STATES
COURT OF APPEALS
FOR THE SEVENTH
CIRCUIT
______________________________________________________________
ELAINE CHAO, SECRETARY, DEPARTMENT OF LABOR,
Petitioner,
v.
GUNITE CORP.
and
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
Respondents
______________________________________________________
On Petition for
Review of a Final Order of the
Occupational Safety
and Health Review Commission
______________________________________________________
CORRECTED BRIEF FOR THE SECRETARY OF
LABOR
____________________________________________________
HOWARD M.
RADZELY
Solicitor of
Labor
JOSEPH M.
WOODWARD
Associate
Solicitor for
Occupational Safety and Health
ANN
ROSENTHAL
Counsel for
Appellate Litigation
RONALD J. GOTTLIEB
Attorneys
U.S.
Department of Labor, Room S4004
200
Constitution Avenue, N.W.
Washington,
D.C. 20210
(202)
693-5495
MARCH 2005
===================================
Back to Top
TABLE OF CONTENTS
Tables of Authorities
Jurisdictional Statement
Statement of Issues
Statement of Case
1. Nature of case, course of proceedings, and
disposition below
2. Statutory and regulatory background
Statement of Facts
1.
Gunite, silica, and the citation
2. The
litigation
3. The ALJ
decision
Decision Below
Summary of Argument
Argument
GUNITE VIOLATED
1919.1000(C) AND (E) BY FAILING TO IMPLEMENT FEASIBLE ENGINEERING OR
ADMINISTRATIVE CONTROLS TO PROTECT ITS WORKERS FROM RESPIRABLE
SILICA
A. Standard of review
B. The Commission majority plainly erred in concluding
that the Secretary had not presented expert testimony
1. Introduction
2. Motley and Hathon were presented as experts on the feasibility of engineering controls
a. The
pre-hearing proceedings established that the Motley and Hathon were to
testify as experts
b. Motley and Hathon testified as experts
C The Secretary need not offer expert testimony to
carry her burden with respect to undisputed facts
1. Three methods of abatement were shown to be
feasible and effective
a. The parties did not dispute that the ventilation
improvements Gunite planned would eliminate overexposures at the molding
station, or that employee rotation would do so at the sprue pull-off
station.
b. Gunites
did not dispute the technological feasibility of clean air islands
D. Once it was established that a recommended control
would abate the violations, there was no need for the Secretary to quantify the
precise level of reduction the control would achieve
E.
The Court should reject the majority's attempt to impose a per se expert witness
requirement for proving technological feasibility
Conclusion
Certificate of Compliance - not available
Certificate of Service - not available
Regulatory Addendum - not available
Appendix Volume I - not available
Back to Top
Cases:
Advance Bronze, Inc. v. Dole, 917 F.2d 944 (6th Cir.
1990)
A.J. McNulty & Co. v. Secretary of Labor, 283 F.3d
328 (D.C. Cir. 2002)
Alfred v. Caterpillar, Inc., 262 F.3d 1083 (10th Cir.
2001)
American Iron & Steel Institute v. OSHA, 182 F.3d 1261
(11th Cir. 1999)
Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977)
Brock v. L.R. Willson & Sons, 73 F.2d 1377 (D.C. Cir. 1985)
Caterpillar, Inc. v. Reich, 111 F.3d 61 (7th Cir. 1997)
Cuyahoga Valley Ry. v. United Transp. Union, 474 U.S. 3 (1985)
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)
Donovan v. Castle & Cooke Foods, a Div. of Castle & Cook, Inc.,
692 F.2d 641 (9th Cir. 1982)
Fontes v. Porter, 156 F.2d 956 (9th Cir.
1946)
G & C Foundry Co., 17 O.S.H. Cas. (BNA) 2137 (Rev. Comm'n
1997)
Globe Contractors, Inc. v. Herman, 132 F.3d 367 (7th Cir.
1997)
J.C. Penney Co. v. NLRB, 123 F.3d 988 (7th Cir. 1997)
Martin v. OSHRC ( CF&I Steel Corp.), 499 U.S. 144 (1991)
Ohio Cast Prods. v. OSHRC, 246 F.3d 791 (6th Cir. 2001)
Seaboard Foundry, Inc., 11 O.S.H. Cas. (BNA) 1398 (Rev. Comm'n
1997)
Sierra Resources, Inc. v. Secretary of Labor, 213 F.3d 989 (7th Cir.
2000)
Sherwin-Williams Co., 11 O.S.H. Cas. (BNA) 2105 (Rev. Comm'n
1984)
United States v. Bartley, 855 F.3d 547 (8th Cir.
1988)
United States v. Conn, 297 F.3d 548 (7th Cir.
2002)
United States v. Leo, 941 F.2d 181 (3d Cir. 1991)
United States v. Pree, 384 F.3d 378 (7th Cir. 2004)
United States v. Williams, 81 F.3d 1434 (7th Cir.
1996)
Statutes and regulations:
Administrative
Procedure Act,
5 U.S.C. § 556(e)
Occupational Safety and Health Act
of 1970,
29 U.S.C. §§ 651-678 (2000)
§ 2(a), 29 U.S.C. § 651(a)
§ 2(b), 29 U.S.C. § 651(b)
§ 5(a)(2), 29 U.S.C. § 654(a)(2)
§ 6, 29 U.S.C. § 655§ 8, 29 U.S.C. § 657
§ 9, 29 U.S.C. § 658
§ 10, 29 U.S.C. § 659
§ 10(c), 29 U.S.C. § 659(c)
§ 11, 29 U.S.C. § 660
§ 11(a), 29 U.S.C. § 660(a)
§ 11(b), 29 U.S.C. § 660(b)
§ 12, 29 U.S.C. § 661
§ 12(j), 29 U.S.C. § 661(j)
§ 17(a), 29 U.S.C. § 666(a)
§ 17(b), 29 U.S.C. § 666(b)
§ 17(c), 29 U.S.C. § 666(c)
29 C.F.R. § 1910.1000(c)
29 C.F.R. § 1910.1000(e)
29 C.F.R. Part 2200
29 C.F.R. § 2200.51(b)
29 C.F.R. § 2200.90(b)
29 C.F.R. § 2200.90(d)
Miscellaneous:
Federal Rule of Civil
Procedure,
Rule 16
Rule 16(c)(4)
Rule 26(a)(2)
Rule 56
Federal Rule of Evidence,
Rule 702
Federal Registers
43 Fed. Reg. 52989-52990 (Nov. 14, 1978)
67 Fed. Reg. 65008 (Oct. 22, 2002)
Charles Alan Wright, Victor James
Gold, Federal
Prac. & Proc. (evid.) 6265 at pp. 260-62
Back to Top
IN THE UNITED STATES
COURT OF APPEALS
FOR THE SEVENTH
CIRCUIT
No. 04-4017
ELAINE CHAO, SECRETARY OF LABOR,
Petitioner
v.
GUNITE CORP.
and
OCCUPATIONAL SAFETY
AND HEALTH
REVIEW
COMMISSION,
Respondents
On Petition for
Review of a Final Order of the
Occupational Safety
and Health Review Commission
Brief for the Secretary of Labor
Jurisdictional Statement
This Court has jurisdiction under
29 U.S.C. § 660(b) to review the final order of the Occupational Safety and
Health Review Commission because the conduct at issue occurred within this
circuit. The Commission obtained jurisdiction when Gunite Corp. timely
contested citations the Secretary had issued under the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-678 (OSH Act or Act).
See 29 U.S.C. §§ 658, 659. The Commission's order is final
because it disposes of all claims involved in the proceedings.
The petition is timely because the
Commission issued the order on September 30, 2004, and the Secretary filed the
petition sixty days later, on November 29, 2004. See § 660(a),
(b).
Back to Top
Statement of Issues
1. Whether the Commission
erred in concluding that the Secretary failed to present expert evidence that
engineering or administrative controls were feasible for reducing silica
exposures at two workstations, even though the Secretary designated two of her
witnesses as experts in pretrial documents, Gunite agreed they could testify as
experts, and they testified about feasible abatement methods.
2. Whether undisputed
evidence, including Gunite's agreement that specific controls would be both
feasible and effective, was sufficient to establish that the controls were
feasible and effective.
STATEMENT OF CASE
1. Nature of case, course
of proceedings, and disposition below
This is an enforcement action
under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§
651-678. Following an inspection of Gunite's foundry, the Secretary issued
citations alleging numerous violations of the Act and Gunite contested the
citations. A Commission administrative law judge (ALJ) affirmed the four
citation items at issue here, but the Commission subsequently vacated
them. The Secretary then filed this petition for review.
2. Statutory and
regulatory background
Finding that occupational injuries
and illnesses "impose a substantial burden" upon interstate commerce, Congress
enacted the OSH Act "to assure so far as possible" safe working conditions for
"every working man and woman in the Nation." 29 U.S.C. § 651(a),
(b). To advance the Act's preventive purpose, the Secretary promulgates
occupational safety and health standards which she enforces by inspecting
worksites and, where appropriate, issuing citations that require the employer to
abate the violation and pay a penalty. §§ 654(a)(2), 655, 657-659,
666(a)-(c); Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 444-46 (1977).
[1]
If an employer timely contests a
citation, the Occupational Safety and Health Review Commission (Commission)
obtains jurisdiction to adjudicate the contest. 29 U.S.C. §§ 659,
661. The Commission is independent of the United States Department of
Labor, and its "function is to act as a neutral arbiter" in contest
proceedings. Cuyahoga Valley Ry. Co. v. United Transp. Union, 474
U.S. 3, 7 (1985) (per curiam); see also Martin v. OSHRC (CF&I Steel
Corp.), 499 U.S. 144, 147-56 (1991).
After affording an opportunity for
a hearing, a Commission ALJ issues a decision affirming, modifying, or vacating
the citation. 29 U.S.C. §§ 659(c), 661(j). The three-member
Commission may review the ALJ's decision. § 661(j); 29 C.F.R. §
2200.90(b), (d). Upon completion of the Commission proceedings, either the
Secretary or any aggrieved party may seek judicial review in an appropriate
court of appeals. 29 U.S.C. § 660.
The Secretary has prescribed
occupational safety and health standards for protecting employees against
overexposure to respirable silica, a toxic substance that poses serious
health hazards. See Ohio Cast Prods., Inc. v. OSHRC, 246
F.3d 791, 794 (6th Cir. 2001)[2] Employers may not expose any employee to
silica in quantities exceeding the permissible exposure limit (PEL), and
must "achieve compliance" with the PEL by using administrative or engineering
controls "whenever feasible." § 1910.1000(c), (e). The standard
further requires employers to use respirators or other personal protective
equipment to limit exposures to below the PEL when feasible engineering and
administrative controls are not capable of achieving full compliance.
Ibid.
Engineering controls, including
product substitution, process or equipment redesign and enclosure, exhaust or
dilution ventilation, and employee isolation, remove the contaminant from the
workers' environment. Advance Bronze, Inc. v. Dole, 917 F.2d 944,
947 n.2 (6th Cir. 1990) (citing 43 Fed Reg. 52989-52990 (Nov. 14,
1978)). Administrative controls, such as employee rotation, reconfigure
the work "to reduce the daily exposure of each individual worker."
Ibid.
This "Hierarchy of Controls" prefers engineering and administrative controls
to respirators because these controls "make respiratory protection automatic,
while respirators are dependent on use and constant attention and are subject to
human error." See American Iron & Steel Inst. v.
OSHA, 182 F.3d 1261, 1267-69 (11th Cir. 1999).
Back to Top
STATEMENT OF FACTS
1. Gunite, silica, and
the citation
Gunite operates a foundry in Rockford, Illinois, that manufactures steel
castings (App. 1-2). This case involves four of its foundry workers, three
"mold station" workers — a metal pourer, a coreset/blowoff operator, and a mold
line technician — and a fourth worker, the sprue pull-off operator, at a
different location (App. 6-7).
To manufacture the castings, Gunite fills sand-based molds with molten iron
(App. 2). After the iron hardens, Gunite removes the molds and transports
the castings to the sprue pull-off operator, who removes any excess metal and
sends the castings to a station that prepares them for the finishing department
(App. 2, 39, 448-49). The transportation process to and from the sprue
pull-off station occurs on vibrating conveyors (App. 2, 39). The vibrating
conveyors cool the castings during transport, but the vibration also causes
silica to be released from the sand remaining on the castings and conveyors
(App. 2, 39, 455-56).
On four occasions between June
1996 and March 1998, Gunite documented overexposures to respirable silica at one
or both of the locations at issue here (App. 4, 542, 597-98, 622-23, 651).[3] Each time, Gunite's consultants recommended
that Gunite adopt engineering or administrative controls to reduce silica
exposure to below the permissible exposure limit (PEL) (App. 544, 604, 626,
655).
[4]
OSHA inspected the facility from
April to October 1998 (App. 1). OSHA's inspection revealed that the mold
station employees and the sprue pull-off operator were exposed to approximately
1.6 times the PEL for respirable silica (App. 227, 286-87). Gunite told
OSHA that it intended to install a new dust collection and ventilation system
for the cited work areas, and that it expected these controls to eliminate the
overexposures (App. 120-30). In the interim, it encouraged – but did not
require – its workers to use respirators in these areas (App. 12).
OSHA's Health Response Team (HRT),
which provides technical expertise in evaluating health hazards and engineering
controls, visited the plant to assess Gunite's claim that its planned
ventilation improvements would reduce the silica exposures at issue to below the
PEL (App. 4-5, Tr. 289, 694-702). Based on the HRT's evaluation, OSHA
concluded that Gunite's planned improvements would reduce exposures to below the
PEL at the molding station but that workers at the sprue pull-off station would
still be overexposed (App. 287-90, 331-32).
The HRT prepared a report recommending a number of specific ventilation
controls that could be used at the sprue pull-off location (App. 699-700).
The recommendation most relevant to this proceeding was to install a "clean air
island" (App. 699). A clean air island is an engineering control involving
an air diffuser located immediately above a worker's head that blows clean air
down to enclose the worker in an "island" of uncontaminated air (Tr. 395).
The report noted that all of its recommendations were "based on general
principles of ventilation and industrial hygiene which have been shown to be
effective in reducing contaminant levels in a variety of industries"
(App. 697).
Following the inspection and HRT
evaluation, OSHA issued citations charging Gunite with a number of violations of
OSHA standards, including willful violations of both the PEL for silica and the
requirement to implement engineering and administrative controls to achieve the
PEL at the sprue pull-off station, and "serious" violations of the same
standards at the molding station, where Gunite's planned controls would abate
the violation (App. 30-33, 287-90, 331-32).
[5]
2. The litigation
During pre-trial proceedings, the
Secretary designated two members of the Health Response Team as expert
witnesses: industrial hygienist Keith Motley and mechanical engineer Lee
Hathon (App. 65-68). She provided Gunite with information about their
qualifications, a summary of their proposed testimony, and the HRT report (App.
67-70). In response, Gunite's pre-hearing statement challenged Motley's
and Hathon's ability to testify about the PEL violations, which were documented
before the HRT assessment, but acknowledged that their opinions were "probative
relative to the question of engineering controls for some of the cited work
areas" (App. 100, 102, 107-08). The Secretary's designation of her expert
witnesses and Gunite's pre-hearing statement were filed with the Commission
(App. 27 (items 42 & 48); see also Tr. 328 (ALJ ruling
that documents filed with Commission need not be introduced into evidence
because they were part of the record).
At the hearing, the parties
stipulated to the admission of the HRT report, and agreed that Motley and Hathon
would be subject to cross-examination on it (App. 333).
[6]
Motley and Hathon then testified about
their qualifications and expertise and about how the HRT report was prepared
(Tr. 363-96, 498-521).
Motley also explained how the "clean air islands" recommended in the report
would eliminate overexposure at the sprue pull-off station (App. 395).
Leroy Cator, the Gunite facilities engineer who was responsible for the
ventilation system, agreed that, "Clean air islands are probably [an] effective"
way to comply; "I don't question that" (App. 491). Cator also acknowledged
that Gunite had installed clean air islands elsewhere in the facility (App.
484).
OSHA Compliance Officer Julia
Evans explained how, even without ventilation changes, administrative controls
could abate the sprue pull-off violation. In response to Gunite's
questioning, she testified that employee rotation was a permissible
administrative control, and that rotating employees through the sprue pull-off
position should reduce exposure to below the PEL (App. 316-19). She also
agreed that Gunite's planned improvements were likely to reduce exposures at the
molding station to below the PEL (App. 287-90, 331-32).
Gunite argued that the citations
should be vacated for two reasons. First, it contended that respirators
both eliminated any overexposure and qualified as administrative controls within
the meaning of Section 1910.1000(e) (App. 117-20, 125, 129). Second, it
claimed that the citation was unwarranted because the new ventilation system it
planned to install would abate all of the violations (App. 120-30).
With respect to the feasibility of engineering and administrative controls,
Gunite asserted only that it would be infeasible to use local exhaust
ventilation to remove all respirable silica from the foundry (App. 179).
As for clean air islands specifically, however, Gunite's objections rested on
Cator's testimony that the air had to be tempered in hot and cold weather so
that the operator would be comfortable, and that the equipment had to be
maintained, (App. 128 (citing App. 483-85, 490-91)), as well as on Motley's
testimony that, although he had experience with clean air islands in a number of
different settings, he had never seen one in a foundry similar to the Gunite
facility (App. 127 (citing App. 396)).
3. The ALJ
decision
The ALJ affirmed all four citation
items at issue here. She rejected Gunite's reliance on respirator use as
either an administrative control or as a defense to the overexposure allegations
(App. 37-38, 40). In affirming the engineering controls violations, she
relied in part on Gunite's failure to challenge the feasibility or effectiveness
of most of the HRT's "specific recommendations for bringing each of the
overexposed positions below the PEL" (App. 40). She also determined that
the sprue pull-off violations were willful, based on Gunite's long-standing
knowledge of the problem; its failure to maintain or repair its existing
ventilation system adequately; and the fact that even its planned ventilation
improvements would not reduce exposures to below the PEL (App. 41).
Back to Top
Decision Below
The Commission agreed with the ALJ
that the protection provided by respirators could not be considered in
determining the level of the employees' exposure to silica, and therefore found
"that the Secretary established that employee exposure to respirable silica
exceeded the PEL" (App. 7-8). A two-member majority nevertheless vacated
the four citation items at issue here, two for exceeding the PEL and two for not
implementing engineering or administrative controls to reduce exposures,
because, in its view, the Secretary had failed to prove that the proposed
engineering and administrative controls would produce a "significant reduction"
in respirable silica at the foundry (App. 9).
The majority relied primarily on its view that none of the Secretary's
witnesses "were presented . . . as expert[s]," and held that therefore the
evidence failed to show that the proposed controls were technologically feasible
(App. 9). According to the majority, the Secretary's obligation to
present expert testimony to establish the feasibility of proposed controls was
not affected by Gunite's failure to challenge the feasibility of these controls
because the obligation "was clearly established at the time of the hearing"
(App. 9-10 n.6). The majority also ruled that the Secretary "failed to
quantify" the expected level of reduction in respirable silica (App. 9-10).
Commissioner Rogers
dissented. She noted that the HRT report had stated that "'[p]rograms such
as housekeeping and employee hygiene . . . will have a significant
effect if used in conjunction with other administrative and engineering
controls,'" and that, for the most part, Gunite did not challenge the
feasibility of these recommendations (App. 21) (emphasis supplied).
Whether or not the HRT members had been presented as experts, she continued, did
not affect "the probative value of their testimony"
(ibid.). In her view, their credentials made their
"testimony sufficiently reliable" (ibid.).
SUMMARY OF ARGUMENT
The Commission majority ignored
pertinent parts of the record and misapplied its case law to vacate the
citations. First, the record establishes beyond doubt that Motley and
Hathon were, in fact, presented as experts. The Secretary explicitly
designated Motley and Hathon as her relevant experts during pre-trial
proceedings, Gunite acknowledged the probative value of their expert opinions
and stipulated to the admission of their report, and their qualifications and
opinions were properly admitted into evidence at trial. The fact that the
designation was not repeated at the hearing is no basis for refusing to
recognize the evidence for what it was — expert testimony. Therefore the
Commission erred as a matter of law in refusing to accord any weight to the
Secretary's expert evidence.
Second, the Commission erred in holding that the Secretary must present
expert testimony to carry her burden with respect to undisputed facts. The
undisputed evidence established that at least three engineering and
administrative controls would have achieved compliance at the cited work
stations. For the molding station employees, the parties agreed
that Gunite's planned improvements would likely reduce the overexposures to
below the PEL. Gunite also did not dispute that compliance could be
achieved at the sprue pull-off station either by employee rotation or through
the installation of a clean air island. Having established that feasible
controls for achieving compliance would have eliminated the overexposures, the
Secretary had no obligation to precisely quantify the expected level of
reduction.
Finally, while the Court need not reach
the issue to reverse the Commission below, neither basic evidentiary principles
nor the Commission's case law supports the majority's statement that the
Secretary must present expert testimony to carry her burden. Not only is
such a requirement unfounded and unexplained, it is wasteful and contrary to
both precedent and common sense.
Back to Top
ARGUMENT
GUNITE VIOLATED 1910.1000(c) AND (e) BY FAILING TO
IMPLEMENT FEASIBLE ENGINEERING OR ADMINISTRATIVE CONTROLS TO PROTECT ITS WORKERS
FROM RESPIRABLE SILICA
A. Standard of review
Whether the Secretary established
that the proposed engineering and administrative controls were feasible and
effective means of reducing silica exposures at Gunite's foundry is a mixed
question of law and fact. The factual components of the Commission's
determination must be reversed if they are not supported by substantial evidence
on the record as a whole. 29 U.S.C. § 660(a); Sierra Resources, Inc.
v. Herman, 213 F.3d 989, 992 (7th Cir. 2000).
The Commission's legal conclusions
are reviewed to determine if they are arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law. Caterpillar, Inc. v.
Reich, 111 F.3d 61, 62 (7th Cir. 1997). This standard
applies to the Commission's determination that the Secretary's proof was
insufficient because she failed to present expert testimony to prove
technological feasibility.
The Secretary's interpretations of
her standards and the Act are controlling if they are reasonable, i.e., if they
"sensibly conform to the wording and purpose" of the relevant provisons.
Martin v. OSHRC (CF&I Steel Corp.), 499 U.S. 144, 150-151 (1991);
Globe Contractors, Inc. v. Herman, 132 F.3d 367, 369-70 n.3, 372
(7th Cir. 1997).
B. The Commission majority plainly erred in
concluding that the Secretary had not presented expert testimony
1.
Introduction
The Commission's decision must be
vacated because the Commission erred when it failed to recognize that Motley and
Hathon had been presented as expert witnesses. This error alone requires
reversal because it was the basis for the majority's conclusion that the
Secretary failed to prove that the proposed controls were technologically
feasible. Specifically, the Commission majority found that the "record as
a whole is insufficient to prove that the controls suggested by the Secretary
would produce a significant reduction in airborne respirable silica in the
foundry" and "lacks sufficient evidence to establish that the proposed controls
were technologically feasible" solely because "neither Compliance Officer Evans
nor any of the HRT members were presented by the Secretary as expert witnesses"
(App. 9; see also id. 9 n.5). See J.C.
Penney Co. v. NLRB, 123 F.3d 988, 995 (7th Cir. 1997) ("We
cannot uphold a decision by an administrative agency . . . if . . . the reasons
given by the trier of fact do not build an accurate and logical bridge between
the evidence and the result").
As we show below, however, not only must the Commission's decision be
vacated, the citations must also be affirmed because the record compels the
conclusion that Gunite violated the cited standards.
2. Motley and Hathon were presented as
experts on the feasibility of engineering controls
a. The pre-hearing proceedings established that Motley and Hathon were to
testify as experts.
The majority erred in concluding that Motley and Hathon had not been
presented as experts. In pre-trial documents filed with the Commission,
the Secretary designated Motley and Hathon as experts for the purpose of
establishing the feasibility and effectiveness of technological controls, and
Gunite accepted them as experts for this purpose (App. 27 (items 42 & 48),
65-70, 108). The Administrative Procedure Act expressly mandates that
these documents are part of the "record for decision." 5 U.S.C. § 556(e);
see also App. 323 (ALJ ruling that documents filed during pre-hearing
proceedings need not be introduced into evidence because they were already part
of the record). It does not appear that the Commission ever examined these
documents, presumably because the issue of expert testimony was raised sua
sponte by the Commission and, as the dissent noted, "ha[d] not previously been
briefed." (App. 21). The Commission's disregard for these pertinent
parts of the record was arbitrary and capricious.
The Commission's assertion that Motley and Hathon did not testify as experts
appears to be based solely on the fact that their designation as experts did not
occur at the hearing. But nothing in the Federal Rules of Evidence, the
Federal Rules of Civil Procedure, or the Commission's Rules of Procedure
requires that a formal designation of an expert occur at the hearing.
See Charles Alan Wright, Victor James Gold, 29 Federal Prac. &
Proc. (Evid.) § 6265 at pp. 260-62 (West 1997) (no mandated
procedures for designating and qualifying experts); 29 C.F.R. Part 2200
(Commission's Rules of Procedure); supra pp. 22 n.6, 23-24 (citing
cases that evaluate testimony of witnesses not designated as experts under
expert witness standards).
Indeed, as occurred here, the status of experts is frequently resolved in
pretrial proceedings. See Fed. R. Civ. P. 16(c)(4), 26(a)(2)
(respectively, limitation or restriction on use of expert testimony is an
appropriate subject of pretrial conference, and imposing special discovery
obligations for proposed expert testimony); Alfred v. Caterpillar,
Inc., 262 F.3d 1083, 1087 (10th Cir. 2001) ("The truth-seeking
function of litigation is best served by an orderly progression, and because
Daubert generally contemplates a 'gatekeeping' function, not a 'gotcha'
junction, [our precedent] permits a district court to reject as untimely
Daubert motions raised late in the trial process"); 29 C.F.R. §
2200.51(b) (Commission rule for pre-hearing conferences incorporating Rule 16 of
Federal Rules of Civil Procedure). The majority improperly rejected the
pretrial resolution of Motley's and Hathon's expert status that occurred here.
[7]
b. Motley and Hathon testified as experts.
Even if the pre-hearing record did not establish Motley's and Hathon's expert
status, the Commission still would not have been justified in determining that
they did not testify as experts because it is the nature of a witness's
testimony, not a witness's formal designation at trial, that determines whether
the witness has testified as an expert. As this Court has noted, the
"difference between an expert witness and an ordinary witness is that the former
is allowed to offer an opinion, while the latter is confined to testifying from
personal knowledge." United States v. Williams, 81 F.3d 1434,
1442 (7th Cir. 1996). The test is whether the witness has
"specialized knowledge that the lay person cannot be expected to possess," and
reasonably applies the principles of that specialized knowledge to the relevant
facts. United States v. Conn, 297 F.3d 548, 554-55
(7th Cir. 2002) (applying Fed. R. Evid. 702 and Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)).
Here, the relevant testimony of Motley and Hathon and the relevant portions
of the Health Response Team report consisted of their opinions about the
feasibility and effectiveness of engineering controls. These opinions were
based on their knowledge of industrial hygiene and ventilation engineering, and
formed after inspecting Gunite's foundry (App. 363-96, 498-521, 694-702).
At the hearing, Gunite stipulated to the admission of their report and examined
them on the methodology they used to prepare it, their qualifications for
providing opinion testimony, and their opinions on the feasibility of controls
Gunite could have used to control exposures (App. 333, 363-96, 498-521).
This examination easily establishes Motley's, Hathon's, and the HRT's
specialized knowledge and the admissibility of their opinions, and the
Commission never suggested otherwise. See App. 5 n.3 (HRT "serves
as a central technical resource for OSHA's program activities"); id. at
21 (Rogers, C., dissenting) (explaining why Motley's and Hathon's testimony was
sufficiently reliable and that the need for them to be designated as "experts"
had not been briefed)).
Under these circumstances, the Commission was required to evaluate this
evidence as the expert evidence it was, regardless of whether a formal expert
designation was made. See United States v. Pree, 384 F.3d 378,
391-93 (7th Cir. 2004) (testimony of witness who was not proffered as
expert evaluated as expert testimony); Conn, 297 F.3d at 553-57
(7th Cir. 2002) (same); United States v. Bartley, 855 F.2d
547, 551-52 (8th Cir. 1988) (court not required to specifically
find that witness was expert before allowing witness to testify as
expert). Accordingly, the Commission's refusal to treat Motley and Hathon
as experts was arbitrary, capricious, and contrary to law.
C. The Secretary need not offer expert testimony to
carry her burden with respect to undisputed facts
The Commission held that the Secretary had to present expert evidence to
establish the feasibility and effectiveness of engineering controls, even though
Gunite did not dispute the utility of the recommended controls. But there
is no rule, and there is no reason for a rule, requiring the Secretary to
present expert evidence on undisputed facts. The Commission's imposition
of such a requirement is unwarranted and illogical.
1. Three methods of abatement were shown to be
feasible and effective
a. The parties did not dispute that the ventilation
improvements Gunite planned would eliminate overexposures at the molding
station, or that employee rotation would do so at the sprue pull-off station
In this case, the parties agreed that Gunite's planned
dust-collection and ventilation systems would abate the molding station
violations (App. 120-30, 287-90, 331-32).
[8]
Gunite argued that these improvements
constituted "all of the steps . . . required as abatement," and the Secretary
did not dispute that the new system would abate the molding station violations
(App. 129; see also App. 125-27, 231-32). Similarly, Compliance
Officer Evans testified without dispute that employee rotation should reduce
exposure at the sprue pull-off station to below the PEL (App.
316-19). Thus, for both locations at issue, undisputed evidence
establishes that Gunite failed to implement an engineering or administrative
control that would have achieved compliance with the PEL.
No valid reason exists for requiring the Secretary to present any additional
evidence, much less expert testimony, to prove either the feasibility or the
effectiveness of these measures. The parties' agreement on the feasibility
and effectiveness of Gunite's planned ventilation controls at the molding
station obviated any need for the Secretary to prove that the system would do
what Gunite said it would.
Futhermore, Evans's undisputed testimony is sufficient to establish that
Gunite could have implemented an employee rotation system to achieve compliance
at the sprue pull-off station. Employee rotation means, as its name
suggests, rotating different employees through a position located in a
contaminated atmosphere so that each employee spends less time in the
contaminated atmosphere (App. 316). The sprue pull-off
operator's exposure was approximately 1.6 times the PEL, and simple logic —
unchallenged by Gunite — establishes that having two or more operators divide
the eight-hour shift among them should lower each individual employee's to below
the PEL (App. 319).[9]
The Secretary carried her burden with respect to both of these measures when
Gunite either admitted or failed to contest them. The whole point of an
evidentiary hearing is to resolve disputed issues of fact.
See Fontes v. Porter, 156 F.2d 956, 957 (9th Cir.
1946) (neither proof nor findings required for uncontested issues); F.R. Civ. P.
56. The Commission's insistence on expert — or any additional — testimony
to establish undisputed facts can only increase the expense and complexity of
litigation before it. [10]
Back to Top b. Gunite did not dispute the technological feasibility
of clean air islands.
Because employee rotation is a feasible method of abating the sprue pull-off
station violations, the citations may be affirmed on that basis alone.
Nevertheless, the evidence presented by both parties established that a clean
air island would be another feasible and effective method of eliminating
overexposures there (App. 395, 491). Motley explained that a clean air
island would engulf the operator in clean air, i.e., air free of
respirable silica, and the HRT report stated that a clean air island was a
control that has "been shown to be effective in reducing contaminant levels" in
other industrial settings (App. 395, 697). The only Gunite witness
to testify about this control method admitted both that a clean air island would
"probably [be] effective" and that it was capable of being adapted to Gunite's
operations (App. 484, 491).
Gunite witness Leroy Cator,
the plant engineer, testified that Gunite objected to clean air islands because
the operator would be exposed to air from outside the plant and could be
uncomfortable in hot or cold weather, and because the equipment would have to be
maintained (App. 484-85, 491). Cater acknowledged, however, that the air
could be tempered to make the operator more comfortable, and he never suggested
that it would be infeasible to maintain the equipment (ibid).
Indeed, he admitted that Gunite had installed clean air islands in another part
of the foundry (App. 484).[11]
Thus, neither of Gunite's objections to clean air islands implicates either
technological feasibility or effectiveness; instead, they merely explain why
Gunite decided it would be inconvenient to install a clean air island at the
sprue pull-off station. Inconvenience is not infeasibility, however, and
is not a defense to failing to implement a control "whenever
feasible." § 1910.1000(e).[12]
The undisputed record here compels the conclusions that it was
technologically feasible to implement the engineering and administrative
controls that OSHA recommended for Gunite's foundry, and that these controls
would have eliminated the overexposures. Therefore the citations must be
affirmed. See Brock v. L.R. Willson & Sons, 773 F.2d 1377,
1388 (D.C. Cir. 1985) (court can reinstate citation if only one conclusion is
supportable on the record).
D. Once it was established that a recommended
control would abate the violations, there was no need for the Secretary to
quantify the precise level of reduction the control would achieve
The undisputed evidence showed that Gunite had not implemented engineering or
administrative controls that it knew were both feasible and likely to achieve
compliance with the PEL, The majority was therefore wrong in suggesting
(App. 10) that the Secretary had to "quantify" further the precise level of
exposure reduction the controls would achieve.
The Commission's contrary suggestion appears to be based on its misreading of
case law stating that the Secretary establishes a violation by showing that
engineering or administrative controls are "capable of producing a significant
reduction in employee exposure." G & C Foundry Co., 17 O.S.H.
Cas. (BNA) 2137, 2140 (Rev. Comm'n 1997). The "significant reduction"
criterion is included because, even if using all feasible controls will
not achieve full compliance with the PEL, employers must still
implement them to the extent feasible. Ibid. Here, the
evidence established that the controls would achieve compliance, and
that is all the Secretary must show.
The HRT report also provided evidence that other controls it recommended
would be effective as well. It stated expressly that its recommendations
were "based on general principles of ventilation and industrial hygiene which
have been shown to be effective in reducing contaminant levels in a variety
of industries." App. 697 (emphasis added); see also App. 21
(quoting other part of report) (Rogers, J., dissenting). Nothing in this
record, and certainly nothing that Gunite argued below, suggests that these
"general principles of ventilation and industrial hygiene" would be less
effective at Gunite's foundry than they have shown themselves to be elsewhere.
The value of this evidence is not undermined by the fact that the report also
noted Gunite's obligation to choose the appropriate control or combination of
controls required to achieve compliance (App. 10, 698). This part of the
report merely restates the requirement of the standard and the teaching of the
Commission itself: "We emphasize that the [employer] is required to
determine and implement feasible controls of any type and in whatever
combination is necessary to achieve compliance." Seaboard Foundry,
Inc., 11 O.S.H. Cas. 1398, 1402 n.5 (Rev. Comm'n 1983); see §
1910.1000(e).
In sum, the parties agreed that three feasible and effective engineering or
administrative controls could have been implemented to achieve compliance with
the PEL, and the evidence establishes this agreement. Thus, the record
compels the conclusion that Gunite violated the cited standards, and therefore
the citations must be affirmed. See Brock v. L.R. Willson &
Sons, 773 F.2d 1377, 1388 (D.C. Cir. 1985) (court can reinstate citation
only if one conclusion is supportable on the record).
Back to Top
E. The Court should reject the majority's attempt
to impose a per se expert witness requirement for proving technological
feasibility
As noted above, the majority's statement that the Secretary failed to present
expert testimony is incorrect. Accordingly, its claim (App. 9-10 n.6) that
such testimony is necessary to establish technological feasibility is
irrelevant. Nevertheless, this statement cannot go unchallenged: it
is wrong and if uncorrected will unnecessarily increase the complexity and
expense of Commission litigation. Accordingly, we urge the Court to reject
the majority's per se requirement or at least to note explicitly that it is not
assuming the correctness of the majority's statement.
It is significant that the sole authority the majority cited for its
assertion that there was a "clearly established" expert witness requirement at
the time of the hearing, G & C Foundry Co., 17 O.S.H. Cas. 2137,
does not hold that expert testimony is required to prove
feasibility; that case merely noted that the expert testimony presented there
established the feasibility of disputed controls. Indeed, the Commission
itself has previously determined that administrative or engineering controls
were feasible without relying on expert testimony. Seaboard
Foundry, Inc., 11 O.S.H. Cas. (BNA) 1398, 1401 & n.4 (Rev. Comm'n
1983).
Furthermore, the general framework established by Commission precedent for
proving feasibility focuses on "realism and common sense" – a focus that eschews
any per se requirement to present expert testimony. See The
Sherwin-Williams Co., 11 O.S.H. Cas. (BNA) 2105, 2110 (Rev. Comm'n 1984)
(applying test set forth in Donovan v. Castle & Cook Foods, a Division
of Castle & Cook, Inc., 692 F.2d 641, 650 (9th Cir.
1982)). Neither precedent nor logic supports the Commission's statement
here (App. 9-10 n.6) that this framework only applied to questions of economic
feasibility. See Sherwin Williams, 11 O.S.H. Cas. at
2110. There is no apparent reason — and the Commission did not even
purport to provide one — to throw "realism and common sense" out the window when
technological rather than economic feasibility is at issue.
As shown above, it is counterproductive to require expert testimony to
establish undisputed and admitted facts. But even for issues in dispute, a
per se expert evidence rule is not justified. The nature of the evidence
required in each case will depend on the basis of the employer's contest in that
case.
For example, where an employer uses identical processes in two locations but
uses effective controls in only one of them, expert testimony would not be
necessary to prove that the employer could implement the same controls in the
other locations. Similarly, where an employer has historically controlled
exposures but then stops maintaining its equipment resulting in exposures in
excess of the PEL, the employer's past success would obviate the need to present
expert testimony to prove the violation. Seaboard Foundry,
11 O.S.H. Cas. at 1401-02 n.4. The point is that, as the Commission itself
has recognized in the past, these decisions must be made on a case-by-case
basis, and a blanket rule serves no purpose other than the unnecessary
complication of Commission litigation.
CONCLUSION
The Commission's decision should
be reversed, and the citation items affirmed.
Respectfully submitted.
HOWARD M. RADZELY
Solicitor of Labor
JOSEPH M. WOODWARD
Associate Solicitor for
Occupational Safety and Health
ANN ROSENTHAL
Counsel for Appellate Litigation
_______________________________
RONALD J. GOTTLIEB
Attorney
U.S. Department of Labor
Office of Solicitor
200 Constitution Ave., N.W.
Washington, D.C. 20210
(202) 693-5494
Back to Top
Footnotes:
[1]
The Secretary has delegated most of her
authority under the OSH Act to the Assistant Secretary who heads the
Occupational Safety and Health Administration (OSHA). Secretary's
Order 5-2002, 67 Fed. Reg. 65008 (Oct. 22, 2002). Accordingly, this
brief uses the terms "the Secretary" and "OSHA" interchangeably.
[2]
The relevant standards are reproduced in the
regulatory addendum to this brief.
[3]
On two of these occasions, the exposures were
described as exceeding the limit set by the American Conference of Governmental
Industrial Hygienists (App. 542, 651; see also App. 237-42).
[4]
Gunite also recorded three cases of silicosis
on its injury and illness log during 1996 and 1997 (App. 4). Moreover,
Gunite had documented silica overexposures well before 1996; in fact, it
asserted that in the early 1990s it developed a long-range plan for controlling
the exposures (App. 3, 471-81, 728-39).
[5]
The Commission affirmed several additional
violations related to silica overexposures. These violations, which are no
longer at issue, include Gunite's failure to conduct frequent inspections to
ensure the use of respirators and two additional willful violations of the PEL
and engineering controls requirements at a different location (App. 10-17).
[6]
The Secretary initially attempted to introduce
a copy of the HRT Report or a draft of that report through Compliance Officer
Julia Evans to show why some of the violations had been classified as
willful. The HRT report was dated after the citations had been issued,
however, and the earlier, but virtually identical, draft had not been provided
to Gunite during discovery. For these reasons, the ALJ sustained Gunite's
initial objections to admitting the report; but as just noted, Gunite
subsequently stipulated to the report's admission.
[7]
See also United States v. Leo, 941
F.2d 181, 192 (3d Cir. 1991) ("so long as the defendant is on notice that the
witness would testify as an expert, the defendant cannot later be heard to argue
that the government failed formally to ask that its witness's opinion be
admitted as those of an expert"). In fact, Gunite moved before trial to
exclude another of the Secetary's expert witnesses, a medical expert, on the
grounds that his proposed testimony was not probative of the disputed issues
(App. 27 (item 46), 102). The Secretary did not call this witness.
[8]
Gunite's contention below that its plan to
install a new ventilation system in the future also absolved it of liability for
existing violations was frivolous. See A.J. McNulty & Co. v.
Secretary of Labor, 283 F.3d 328, 335 (D.C. Cir. 2002) (employer must
comply before exposing employees to forbidden risk).
[9] Gunite argued below that respirator use is
also an "administrative control" within the meaning of the standard. But
the standard's requirement to implement engineering and administrative controls
to the extent feasible and to use respirators only when engineering or
administrative controls are not capable of achieving full compliance would make
no sense under Gunite's interpretation. See § 1910.1000(e).
See generally American Iron & Steel Inst. v. OSHA, 182 F.3d 1261,
1267-71 (11th Cir. 1999) (OSHA reasonably retained its "Hierarchy of
Controls Policy").
[10] Cf. Cuyahoga Valley Ry. Co. v. United
Transp. Union, 474 U.S. 3, 7 (1985) (Commission's "function is to act as
neutral arbiter").
[11] In light of these admissions, Gunite's
criticism that Motley had not seen a clean air island used at a foundry similar
to Gunite's is without merit. Motley was familiar with Gunite's foundry
and had the expertise to conclude that a control he knew had been used
successfully in a variety of industries could also be used there.
[12] Although Gunite also claimed that it
was infeasible to locally exhaust all of the sand it used at the plant, the
Secretary never suggested that Gunite do that, and this infeasibility claim is
irrelevant to the recommendation to use a clean air island to bring fresh air to
a single location.
|