Bethlehem Steel Corp. v. Commissioner of Labor & Industry

RODOWSKY, Judge. This judicial review action arises under the Maryland Occupational Safety and Health Act (MOSHA), Md.Code (1991 & 1994 Cum.Supp.), §§ 5-101 through 5-901 of the Labor and Employment Article (LE). The issue is whether, under a citation charging violation of the machine guarding requirements of 29 C.F.R. § 1910.212 (a)(1), the burden is on the employer to prove infeasibility of compliance as an affirmative defense. The Court of Special Appeals, in an unreported opinion, held that the burden was on the employer.

Because, as reviewed infra, the great weight of federal authority confirms the intermediate appellate court’s analysis, we shall affirm. On August 21, 1991, an employee of Bethlehem Steel Corp. (Bethlehem) was fatally injured while working on a lathe in the tin mill machine shop at the Sparrows Point plant. The employee was polishing a Halogen line plater contact roll. These rolls are used as part of a conveyor line in order to roll steel plates through a chemical solution.

Contact with the chemical solution causes deposits on the rolls which must be removed via a polishing operation. The polishing is performed on a Lodge & Shipley lathe by using a strip of emery cloth which an operator loops around the roll allowing the rotation of the lathe to polish the roll. The strip of emery cloth is held at both ends by the operator, and the operator’s hands come in close proximity to the lathe’s chuck jaws. 1 ³²⁶ The accident occurred when the operator’s glove became entangled in a keyway of the roll being polished. 2 The roll was rotating at 344 rpm, and the operator was pulled down under the roll, struck his head, and suffered fatal injuries. An inspector from the Commissioner of Labor and Industry’s occupational safety and health staff (MOSH) investigated.

No violation was charged concerning the immediate cause of death. During the investigation the inspector observed the alleged violation involved in this case. The inspector issued a citation citing 29 C.F.R. § 1910.212 (a)(1) and charging specifically that “[mjachine guarding was not provided to protect operators and other employees from hazards created by rotating parts of lathe chuck jaws and shims.” 3 Bethlehem contested the citation, and the hearing examiner affirmed. The examiner found, inter alia, that it was feasible to provide guarding and that it did not present a greater hazard to the operator during pohshing than did unguarded chuck jaws.

On review before the Commissioner, Bethlehem argued that MOSH had not proved that guarding the chuck was feasible. The employer’s position was that workers would have to place their hands under the guard in order to perform the polishing operation, so that employee safety would not be improved by any guarding mechanism. Lathe chuck guards are commercially available, and they are affixed to lathes at Bethlehem that are used for other functions. Chuck guards shield the worker from flying chips of solid material and from the splatter of liquids, but, Bethlehem submits, they do not abate ³²⁷ the hazard in polishing.

The Commissioner held that the “employer has the burden of proving as an affirmative defense that it is impossible to guard the machine in any fashion and that there are no alternate means for protecting employees.” On that analysis, and because Bethlehem did not contend that it had established impossibility, the Commissioner upheld the citation of violation. Bethlehem sought judicial review of the Commissioner’s decision in the Circuit Court for Baltimore County. The allocation of the burden of proof concerning feasibility was the only question addressed by the circuit court. It reversed the Commissioner.

The Commissioner appealed to the Court of Special Appeals which reversed the circuit court. The intermediate appellate court agreed that the burden was on the employer under the standard in question, but held that the Commissioner had misstated that burden. Rather than proving that abatement was “impossible,” the Court of Special Appeals held that the burden was one of “feasibility.” Accordingly, the matter was remanded back to the Commissioner. On Bethlehem’s petition this Court issued the writ of certiorari in order to determine the allocation between the parties of the burden concerning feasibility of compliance to abate an alleged violation of 29 C.F.R. § 1910.212 (a)(1). 4 There was no cross petition by the Commissioner, and no party before this Court treats the impossibility/infeasibility issue as embraced within the petition that we granted. 5 ³²⁸ I MOSHA and the federal Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. §§ 651 through 678, are substantially similar. 6 When interpreting federal regulations enforced under MOSHA, we look to federal cases for guidance.

J.I. Hass Co. v. Department of Licensing & Regulation, 275 Md. 321, 330 , 340 A.2d 255, 260 (1975). Both acts create two kinds of obligations, one under the “general duty clause,” 7 and the other under the “specific duty clause.” 8 It is well settled that, when undertaking to establish a violation of the general duty clause, the Commissioner has the burden of proving feasibility of compliance. “[T]he Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid ³²⁹ citation, and to demonstrate the feasibility and likely utility of those measures.” National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1268 (D.C.Cir.1973); see also Faultless Div., Bliss & Laughlin Indus., Inc. v. Secretary of Labor, 674 F.2d 1177, 1189 (7th Cir.1982); Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d 439, 441 (5th Cir.1977); United Steelworkers of Am. AFL-CIO, Local 2610 v. Bethlehem Steel Corp., 298 Md. 665, 680 , 472 A.2d 62, 70 (1984).

The rale of these cases is driven by the concern that, absent fair notice of what is required or prohibited, there may be a violation of due process. Similarly, in cases where a citation charges violation of the specific duty clause by citing to a regulatory standard, the same concern has been manifested. Thus, in a case involving a standard other than § 212, the court said that “where only a general standard is involved without suggested or specified means of compliance, the burden is placed upon the Secretary to establish a technological and feasible means of compliance.” Quality Stamping Prods. v. OSHRC, 709 F.2d 1093, 1099 (6th Cir.1983); see also Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105, 1113 (7th Cir.1982). On the other hand, “where a specific duty standard contains the method by which the work hazard is to be abated, the burden of proof is on the employer to demonstrate that the remedy contained in the regulation is infeasible under the particular circumstances.” Ace Sheeting & Repair, 555 F.2d at 441 .

For burden of proof allocation purposes those standards that are treated in the same way as the general duty clause are referred to, in abbreviated fashion, as general standards. Conversely, for burden of proof allocation purposes, those standards that are not treated in the same way as the general duty clause are referred to as specific standards. In the instant case, the issue then can be said to be whether, in the burden of proof context, § 212(a)(1) is general or specific. The entire standard, in relevant part, reads as follows: ³³⁰ “§ 1910.212 General requirements for all machines. “(a) Machine guarding—(1) Types of guarding.

One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are—barrier guards, two-hand tripping devices, electronic safety devices, etc. “(2) General requirements for machine guards. Guards shall be affixed to the machine where possible and secured elsewhere if for any reason attachment to the machine is not possible. The guard shall be such, that it does not offer an accident hazard in itself. 1 “(3) Point of operation guarding, (i) Point of operation is the area on a machine where work is actually performed upon the material being processed. “(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded.

The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle. “(iv) The following are some of the machines which usually require point of operation guarding: “(d) Power presses. “(4) Barrels, containers, and drums.... “(5) Exposure of blades____ “(b) Anchoring fixed machinery....” ³³¹ II Both parties before this Court claim support for their positions in federal precedents. These include not only decisions of United States Courts of Appeal, but also of the Occupational Safety and Health Review Commission, an independent, quasi-judicial agency established by OSHA (the Review Commission or Commission). Bethlehem principally relies on Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir.1978). Review Commission and judicial decisions dealing with § 212 reveal that Diebold is out of the mainstream of federal precedent, to the extent, if any, that it holds that the burden concerning feasibility of compliance with §§ 212(a)(1), 212(a)(3)(ii), or 212 as a whole, is on the U.S. Secretary of Labor (the Secretary).

OSHA was enacted by the Act of December 29, 1970, Pub.L. No. 91-596, 84 Stat. 1590. As early as 1975 the Review Commission had held that § 212(a)(1) was not “unenforceably vague if interpreted to require point of operation guards.” Paccar, Inc., 1974-75 OSHD (CCH) ¶ 19,595 at 23,404 (R.C. 1975). Paccar involved a press brake, a type of power press. A press brake is used to shape metal by the action of two dies against each other.

The material to be shaped is placed upon the lower die, the operator causes the upper die to descend, and the machine applies great pressure to the metal at the point of operation between the two dies. The operation is hazardous, particularly when the metal is manually inserted and aligned. The Review Commission reasoned in Paccar that because “[t]he standard [§ 212(a)(1) ] specifically mentions point of operation guarding as one of the methods of guarding to be employed,” and because § 212(a)(3)(iv) specified power presses, “the standard explicitly requires point of operation guards on the types of machines” involved. Id. at 23,404-405.

That same year, in Buckeye Indus., Inc., 1975-76 OSHD (CCH) ¶ 20,239 (R.C.1975), an employer was cited for a § 212(a)(3)(ii) violation due to the complete absence of point of ³³² operation guards on sewing machines. The Review Commission held that the Secretary “need not show that it is possible for guards to be placed upon the machines; the burden of showing impossibility is properly placed on the employer....” Id. at 24,120. The Review Commission said that the § 212(a)(3)(ii) “standard itself prescribes the performance required by guarding.” Id. The Commission further said that the standard “also suggests several guarding methods such as barrier guards, two hand-tripping [sic] devices and electronic safety devices,” but to support that statement the Commission cited to § 212(a)(1) and not to the text of § 212(a)(3)(ii).

Id. The Fifth Circuit affirmed. Buckeye Indus., Inc. v. Secretary of Labor, 587 F.2d 231 (5th Cir.1979). That court said that “[t]he contentions as to the vagueness of the regulations and the allocation of the burden of proof under the regulations are clearly without merit.” Id. at 236 (footnotes omitted).

The holding of Buckeye Indus., i.e., that it was not the Secretary’s burden to prove the existence of an appropriate means of abatement, was applied as direct precedent in Hood Sailmakers, Inc., 1977-78 OSHD (CCH) ¶ 22,422 at 27,038-039 (R.C.1977). Significantly, the citation in Hood Sailmakers charged violation of § 212(a)(1). A case emphasized by the respondent before this Court is A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948 (1st Cir.1978). The hazard involved cutting out leather to pattern by the use of “ ‘beam dinkers,’ a kind of press which drives a hand held die down into a piece of leather positioned on a block.” Id. at 949.

Burgess Leather had been cited under § 212(a)(1). A.E. Burgess Leather Co., 1977-78 OSHD (CCH) ¶ 21,573 at 25,885 (R.C.1977). The administrative law judge had placed the burden of proving impossibihty/infeasibility on the Secretary, but the Review Commission reversed by applying Buckeye Indus. Id. at 25,886.

Before the First Circuit, Burgess Leather argued infeasibility. The court held that “ ‘where a specific duty standard contains the method by which the work hazard is to be abated, the burden of proof ³³³ is on the employer to demonstrate that the remedy contained in the regulation is infeasible under the particular circumstances.’ ” 576 F.2d at 952 (quoting Ace Sheeting & Repair, 555 F.2d at 441 ). The Secretary’s evidence had indicated that the die could be held in place by a flexible arm, thus freeing both of the operator’s hands for triggering the dinker by a two-hand control, a guard specifically mentioned in § 212(a)(1). 9 The Burgess Leather court held that the employer had not rebutted that testimony and thus had failed to meet its burden of proof under § 212(a)(1). Id. at 952.

Against the foregoing background Diebold was decided. Bethlehem asserts that Diebold “held that § 1910.212(a)(1) is a general standard, under which the agency has the burden of proof with respect to feasibility of abatement.” Brief of Petitioner at 12. As we read Diebold, it does not make so definitive a holding. An enforcement officer had cited Diebold under § 212(a)(3)(ii) for the absence of guards on the point of operation of press brakes and mechanical punch presses.

Diebold, Inc., 1975-76 OSHD § 20,333 at 24,248 (R.C.1976). There is no indication that the employer argued a burden of proof issue before the Commission. It upheld the citation. Before the Sixth Circuit Diebold prevailed on a due process argument based on “the insufficiency of the warning,” a holding based on the particular facts in that case.

Diebold, 585 F.2d at 1338 . The court recognized that its holding would not produce the same result in future cases because “[o]nce such a construction has been provided, wholly prospective application of the rule thus established does not offend due process since the interpretive decision itself provides the requisite warning.” Id. ³³⁴ Relevant to the case before us, however, is part of the reasoning of the Sixth Circuit in deciding an argument on which Diebold did not prevail. The sourcé of § 212 under OSHA was a regulation promulgated under the Walsh-Healey Public Contracts Act, 41 U.S.C. §§ 35 through 45. Diebold contended that industrial practice and belief during the operative period of the predecessor regulation contradicted the applicability of § 212 to press brakes. 585 F.2d at 1331 .

The Sixth Circuit rejected that argument. Id. at 1332 . Diebold then argued that press brake guarding was impossible in 1971 when the Secretary promulgated the former regulation as an OSHA regulation. Id. at 1333 .

In this connection the court interpreted § 212, apparently in its entirety, as applying “only where there exists an identifiable and practical means for guarding the specific machine in the specific uses to which the cited employer puts it.” Id. The Diebold court then gave three reasons for this construction. First, the construction placed “an eminently reasonable limitation on the breadth to which the standard’s literal language might otherwise be extended.” Id. Secondly, it comported “with the principle that where a standard imposes a duty without specifying the means of compliance, the Secretary has the burden of establishing the existence of a specific and technologically feasible means of compliance as an element of his showing that a violation has occurred.” Id.

Third,’ the court said that “most importantly, we believe that this construction embodies a reasonable assessment of the intended nature of § 1910.212 (and its Walsh-Healey source) as a general ‘catch-all’ or ‘gap-filler’ intended to impose a point of operation guarding requirement in any case where a hazard exists and guarding is feasible but no other regulation addresses the problem.” Id. From the standpoint of the issue before us, it is noteworthy that Diebold did not apply to the facts of that case its statement in the second reason concerning the burden of ³³⁵ feasibility. Also noteworthy is that, following three citations given in support of the second reason, the court inserted a footnote which states: “Of course, where the