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Niemand Industries, Inc. v. Reich
Citations: 73 F.3d 1083; 1996 CCH OSHD 30,970; 17 OSHC (BNA) 1495; 1996 U.S. App. LEXIS 1105; 1996 WL 11773Docket: 94-6854
Court: Court of Appeals for the Eleventh Circuit; January 29, 1996; Federal Appellate Court
Original Court Document: View Document
Niemand Industries, Inc. petitioned the United States Court of Appeals for the Eleventh Circuit for a review of the Occupational Safety and Health Review Commission's decision, which affirmed an administrative ruling that found Niemand in violation of 29 C.F.R. 1910.1000(c) for exposing employees to excessive levels of talc. The Commission's ruling was based on an inspection by OSHA following a complaint about talc exposure at Niemand's manufacturing facility in Marion, Alabama. The court identified the central issue as whether the Secretary of Labor provided sufficient evidence to support the claim of excessive talc exposure beyond the permissible exposure limit (PEL) specified in Table Z-3 of 29 C.F.R. 1910.1000, which sets the limit at 20 million particles per cubic foot of air (mppcf). OSHA's industrial hygienist, Valentin Ille, Jr., used a gravimetric air sampling method, measuring exposure in milligrams per cubic meter (mg/m3) instead of the particle count method required by Table Z-3. Ille calculated exposures of 7.05 mg/m3 and 4.89 mg/m3 for two employees. Niemand argued that the Secretary's method of measurement was improper as it did not align with the Table Z-3 requirements and that no conversion method between particle count and gravimetric units was provided in the regulations. OSHA countered that the mg/m3 and mppcf measurements were comparable and that the gravimetric testing results should be accepted despite the lack of a specified conversion in the regulations. Ultimately, the court found no substantial evidence to support the Commission's decision and reversed it, indicating that the method used by OSHA did not adequately demonstrate a violation of the exposure limits set forth in the regulations. The Commission's factual findings are deemed conclusive when supported by substantial evidence, as per 29 U.S.C. 660(a). However, the record lacks evidence to validate OSHA's claim that 20 mppcf and 3 mg/m3 are equivalent. The Commission accepted the Secretary's earlier statement from a proposed rulemaking, which suggested that 3 mg/m3 is 'roughly equivalent' to 20 mppcf, despite the final rule being vacated. The Commission concluded there was overexposure based on a measurement of 4.89 mg/m, but the vacated rules do not establish necessary equivalence. OSHA's reliance on Ille's unsupported testimony and a conversation with an anonymous chemist is insufficient for a reliable standard. If the light-field technique is no longer valid, OSHA must use its rulemaking authority to amend regulations and provide evidence for alternative measurements. Without substantial evidence exceeding the OSHA standard of 20 mppcf, OSHA cannot pursue violations based on unrecognized measurement techniques. Consequently, the final decision of the Commission is reversed and remanded.