Smith Steel Casting Company (Commission decision, November 26, 1986)

Plain-English summary

The Fifth Circuit returned Smith Steel Casting Company's consolidated case to the Commission. Following the court's instructions, the Commission remanded two items from citation 1 and one item from citation 2 to the administrative law judge. The judge was directed to consider Smith Steel's argument that the 1980 version of the air-contaminant standard was invalid because it had not been adopted through the required rulemaking procedure. The two citation 1 items were also remanded for additional evidence on whether the proposed controls were economically feasible. The official release does not include the original judge's decision or state the underlying exposure facts, classifications, or penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1000
• Outcome: Three citation items remanded for a validity issue, with two also reopened for economic-feasibility evidence.
• Key point: The Commission followed the Fifth Circuit's mandate and returned the disputed air-contaminant items for a fuller administrative record.

Full text (OSHRC public release)

Docket No. 80-2069_80-2322

SECRETARY OF LABOR,

Complainant

v.

SMITH STEEL CASTING COMPANY,

Respondent.

OSHRC Docket Nos. 80-2069 and 80-2322

DECISION

Before: BUCKLEY, Chairman; WALL, Commissioner.

BY THE COMMISSION:

This case is here on remand from the United States Court of Appeals for the Fifth Circuit. Smith Steel Casting Co. v. Brock, 800 F.2d 1329 (5th Cir. 1986). In accordance with that decision, we remand items 2F and 2G, citation 1, and item 2, citation 2 to Administrative Law Judge Edwin G. Salyers for consideration of the argument of Smith Steel Casting Company that "the version of 29 C.F.R. 1910.1000 (1980) at issue in this case is invalid and unenforceable because it was not adopted pursuant to the rulemaking procedure provided in 29 U.S.C. 655(b)(1982)." We further remand items 2F and 2G of citation 1 "for the receipt of additional evidence on the issue of economic feasibility." Smith Steel, 800 F.2d at 1338-1339. We call to the parties' attention the current Review Commission precedent on economic feasibility, Sherwin- Williams Co., 84 OSAHRC 28/A2, 11 BNA OSHC 2105, 1984-85 CCH OSHD 26,986 (No. 14131, 1984).

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED: NOV 26, 1986

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