Niemand Industries, Inc. (Commission decision, July 29, 1994)

Plain-English summary

OSHA cited Niemand Industries for employee talc exposure, use of unapproved dust masks, and failure to use feasible controls. The Eleventh Circuit reversed the Commission's earlier finding because OSHA had measured talc exposure with a technique not provided in Table Z-3. The Commission concluded that the overexposure item had to be vacated and that the respirator and control items depended on that alleged overexposure. After the Secretary did not respond to an order asking whether all three items and their penalty should be vacated, the Commission vacated them. The $2,800 penalty was also vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.134(a)(1), 1910.1000(c), and 1910.1000(e).
• Outcome: Vacated. The Commission vacated all three talc-related items and the associated $2,800 penalty.
• Key point: When the court rejected the measurement basis for the talc overexposure item, the dependent respirator and engineering-control items could not stand.

Full text (OSHRC public release)

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SECRETARY OF LABOR,
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Complainant,

V. OSHRC Docket No. 92-296

NIEMAND INDUSTRIES, INC.,
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Respondent.
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ORDER

This case is before the Commission on remand from the United States Court of Appeals for the Eleventh Circuit. Niemand Indus., Inc. v. Reich, 73 F.3d 1083 (1 lth Cir. 1996). In its decision, the court reversed a decision by the Commission finding that Niemand Industries, Inc. (“Niemand”) had committed a serious violation of the occupational safety and health standard at 29 C.F.R. ~1910.1000(c) by exposing one of its employees to talc in excess of the levels permitted by the standard. Niemand Indus., Inc. v. Reich, 16 BNA OSHC 1947,1993-95 CCH OSHD T[30,501 (No. 92-296, 1994). The court held that “OSHA may not prosecute a violation on the basis of a measurement technique not provided for in Table Z-3 .” 73 F.3d at 1085.

1996 OSHRC No. 26
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2

The court’s decision specifically addressed item 2b of the citation, which alleged that Niemand’s employees were exposed to excessive levels of talc. Item 2a of the citation alleged that Niemand’s employees who were exposed to excessive levels of talc used unapproved dust masks for protection instead of approved respirators. Item 2c of the citation alleged that when employees were exposed to excessive levels of talc feasible engineering and administrative controls were not used to protect them. Because item 2b, which alleged exposure to excessive levels of talc, must be vacated, it appeared to the Commission that items 2a and 2c, which are predicated on overexposure to talc, must also be vacated.
In an order dated May 28, 1996, we asked the Secretary to address within ten days whether, under the court’s decision, items 2a, 2b, and 2c of the citation must be vacated, along with the penalty assessed for those three items. Having received no response, we now vacate items 2a, 2b, and 2c of the citation, which alleged violations of the standards at 29 C.F.R.
$9 1910.134(a)(l), 1910.1000(c), and 1910.1000(e), respectively. We also vacate the penalty of $2,800 assessed for those items.

Stuart E. Weisberg
Chairman

Velma Montoya
Commissioner

Daniel Guttman
Dated: September 4, 1996
Commissioner