Petitions for Review of an Order of the Occupational Safety and Health Review Commission.
Cummings, Posner, and Flaum, Circuit Judges.
This case arises out of the explosion of a pressure vessel at Union Oil Company's Chicago refinery in 1984 that killed seventeen workers. OSHA conducted an investigation, and, on January 11, 1985, cited Union Oil for three "willful" violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq., and one "serious" one. On the basis of these citations, OSHA assessed penalties against the company totaling $31,000, the maximum possible given the violations. See 29 U.S.C. §§ 666(a), (b). Union Oil contested the assessment and the matter was referred to the Occupational Safety and Health Review Commission, which adjudicates disputes concerning the application of the Occupational Safety and Health Act. After a hearing which lasted twenty-seven days the administrative law judge upheld most of OSHA's citations but reduced parts of two of them (they were composite citations) from willful (maximum penalty $10,000) to serious (maximum $1,000). The resulting award of penalties totaled $22,000, which was roughly two-thirds of OSHA's assessment.
Both Union Oil and OSHA asked the Commission to review the administrative law judge's decision. The Occupational Safety and Health Act provides that the decision ("report") of the administrative law judge "shall become the final order of the Commission within thirty days after such report . . . unless within such period any Commission member has directed that such report shall be reviewed by the Commission." 29 U.S.C. § 661(j). The Commission is supposed to have three members but it had only one at the time, Chairman Buckley, and he declined to direct review. "Under normal circumstances I would direct review. . . . Resolution by the Commission of the 15 alleged procedural errors and 28 alleged substantive errors would be most helpful to a Circuit Court of Appeals [ sic ] to which an appeal may be directed. . . . But these are not normal circumstances for the Commission: We have lacked a full Commission since September of 1986, over 17 months; we have lacked a quorum to take official action since April 27, 1987, over ten months. . . . I am no longer optimistic that the Commission vacancies will be filled in the foreseeable future." This statement was issued on the thirtieth day after the administrative law judge had submitted his decision to the Commission. Treating that decision as final by virtue of Chairman Buckley's refusal to direct review by the Commission, OSHA petitioned this court to review the portions of the decision with which OSHA disagrees. Union Oil has cross-petitioned, and we begin with its arguments.
The Commission had no quorum when it was asked to review the administrative law judge's decision, and Union Oil argues that the absence of a quorum prevented the decision from becoming final and hence appealable. See 29 U.S.C. §§ 659(c), 660(a). The usual rule on quorums, see, e.g., FTC v. Flotill Products, Inc., 389 U.S. 179, 183, 19 L. Ed. 2d 398, 88 S. Ct. 401(1967); Tagatz v. Marquette University, 861 F.2d 1040, 1042 n.* [Footnote Omitted] (7th Cir. 1988); 28 U.S.C. § 46(d), made expressly applicable to the Occupational Safety and Health Review Commission by 29 U.S.C. § 661(f), is that a bare majority of the authorized membership is necessary for a quorum. Since Union Oil, although partially successful before the administrative law judge, was a bigger loser than OSHA and is therefore the principal petitioner in this court (though technically the cross-petitioner because OSHA filed its petition first), we are presented with the paradox of an appellant who is challenging the appeal court's jurisdiction. The paradox is only apparent. If the administrative law judge's decision is not final, then Union Oil is not required to comply with it, either by paying the penalties or, more important, by altering its safety practices to comply with the administrative law judge's interpretation of the Occupational Safety and Health Act and of the regulations under it. An employer who fails to abate a violation after the Commission's order upholding OSHA's citation becomes final opens himself to an additional, and much more severe, penalty--$1,000 a day until the violation is abated. See 29 U.S.C. § 666(d).
As is typical in labor disputes (the genre to which this case belongs), the employer, Union Oil, is on the side of delay. The general reason employers resort so frequently to delaying tactics is to make the laws for the protection--actual or apparent--of workers appear impotent. The particular reasons for delay in this case are not only a desire to stave off having to change safety practices but also the fact that Union Oil is embroiled in litigation in an Illinois state court--thirty separate lawsuits, we were told at argument--with manufacturers and other suppliers whom the injured workers and the survivors of the killed workers sued. The manufacturers and suppliers are seeking contribution from Union Oil toward the damages they have paid or may have to pay to the worker plaintiffs, and Union Oil is concerned about the possible impact on that litigation of a final determination in this one that it willfully violated the Occupational Safety and Health Act.
Union Oil's jurisdictional argument does not persuade us. Cf. Pennsylvania Steel Foundry & Machine Co. v. Secretary of Labor, 831 F.2d 1211, 1213-14 (3d Cir. 1987); Marshall v. Sun Petroleum Products Co., 622 F.2d 1176, 1179-80 (3d Cir. 1980). The statutory condition for the finality of an administrative law judge's decision is merely that no member of the Commission direct, within thirty days, that the decision be reviewed--a condition satisfied here. There is nothing in the statute concerning the reasons no member might direct review in a case. One reason might be, as here, the absence of a quorum; even more dramatic would be a case where, because the Commission had no members, no member could direct review. It might be a scandal for the President or the Senate to prevent an important federal commission from operating by failing to fill vacancies in it (we are not told who was responsible for these particular vacancies), but it would not follow that decisions by the commission's staff were unappealable. Congress wanted persons aggrieved by orders of administrative law judges of the Occupational Safety and Health Review Commission to be able to obtain judicial review even if the Commission declined--for whatever reason--to review the orders. (The worse the reason, one might suppose, the stronger the argument for judicial review of the staff decision.) Such declinations are, after all, common, even though in this case the reason was unusual. Both in Social Security disability cases and in unfair labor practice cases, appellate review within the agency (by the Appeals Council of the Social Security Administration, and by the members of the National Labor Relations Board, respectively) usually is perfunctory, so that in most such cases judicial review of the agency's order is in effect judicial review of the administrative law judge's order. See, e.g., NLRB v. Certified Grocers of Illinois, Inc., 806 F.2d 744 (7th Cir. 1986). And, unlike those cases, persons aggrieved by orders issued by OSHRC's administrative law judges lack even a formal entitlement to judicial review by the Commissioners; such review is strictly discretionary.
Of course there is a difference between a case where no Commissioner thinks the administrative law judge's order worthy of review and a case that apparently meets the Commission's standards for review but the absence of a quorum persuades the remaining member that it would be futile to direct review by the Commission. And ours is the second type of case. Union Oil complains that it has been cheated of a level of review to which the statute entitles it, albeit a level of merely discretionary review--but probably discretion would have been exercised in favor of review had there been a quorum. In the unlikely event that this deprivation denied Union Oil due process of law (or some other procedural right)--despite the principle that there is no constitutional right to an appeal, even in a criminal case, see, e.g., Jones v. Barnes, 463 U.S. 745, 751, 77 L. Ed. 2d 987, 103 S. Ct. 3308(1983); Ortwein v. Schwab, 410 U.S. 656, 35 L. Ed. 2d 572, 93 S. Ct. 1172(1973) (per curiam); United States v. Puzzanghera, 820 F.2d 25, 26 (1st Cir. 1987), and despite Union Oil's failure even to argue that it has a constitutional right to anything more than a purely discretionary review of the administrative law judge's decision--the company could, but it does not, cite the violation of its rights as a ground for our setting aside the administrative law judge's order, which became the Commission's order by operation of the statute. The denial of procedural rights could be a reason the order might be invalid, but it does not deprive the order of its finality and hence appealability.
Shortly before argument we were told that a second member of the Commission had been appointed, so that the Commission now had a quorum at long last; that Union Oil had asked the Commission to reconsider Chairman Buckley's refusal to review the administrative law judge's order; and that the Commission had ruled (whether rightly or wrongly, compare United States v. Fornea Road Boring Co., 565 F.2d 1314 (5th Cir. 1978) (per curiam), with Marshall v. Monroe & Sons, Inc., 615 F.2d 1156 (6th Cir. 1980), and J.I. Hass Co. v. OSHRC, 648 F.2d 190, 193-94 (3d Cir. 1981)) that it could not act on this request because jurisdiction over the case was now in this court, see 29 U.S.C. § 660(a). Union Oil asks us to remand the case to the Commission so that it can consider whether it wants to hear the appeal from the administrative law judge after all. We decline. The Commission's quorum is a precarious one. The new member, Linda Arey, had only been given a recess appointment, and after the election the President-elect's press secretary had announced that all recess appointees would be asked to resign on January 20. (The parties haven't bothered to inform us whether Arey submitted her resignation and, if so, whether it was accepted and, if so, effective when.) And while two is a quorum, the Commission cannot act effectively when it has only two members unless both agree. Moreover, the Commission has a tremendous backlog because of its vacancies; we are told it may take two years for the Commission to become caught up. In these circumstances (which include Union Oil's failure to keep us up to date on the quorum situation), and considering the public safety implications of this case, we decline to consign it to a possible limbo by remanding it to this fragile agency.
So much for procedure; let us turn to the merits.
The case has a huge record full of technical mumbo-jumbo, but the essential facts are simple and the issues reasonably straightforward. The pressure vessel that exploded--an "amine absorber" used in petroleum refining--was a steel cylinder 53 feet tall and 8.5 feet in diameter. An amine absorber removes hydrogen sulfide from a stream of liquified petroleum gas consisting of propane and butane. The process is carried out at high temperature and under great pressure. The vessel was designed to withstand pressure of up to 230 pounds per square inch and temperature of up to 140 degrees Fahrenheit, although the pressure and temperature in the vessel when in operation were lower--in the neighborhood of 200 pounds and 100 degrees.
Because of the danger of serious fires at petroleum refineries, Union Oil maintained its own firefighting force. This force had either two or three components (Union Oil says two, OSHA three). One was a regular daytime crew made up of volunteers from among Union Oil's employees who worked the day shift, which ends at 4:30. This crew was well trained, and well equipped with "firefighting personal protective equipment" (i.e., fireproof clothing). This crew was not involved in the disaster and OSHA has no complaints about its training or equipment. Next was the "shift fire crew," a smaller, less well trained and less well equipped firefighting force that came on duty at 4:30 p.m. with the night shift. In addition to these two fire crews, operating employees of the company were instructed to remain at their posts in the event of fire and take such feasible steps as might be necessary to contain an emergency until the relevant firefighting crew (depending on the time of day) arrived.
At 5:30 in the afternoon of July 23, 1984, employees of Union Oil noticed a vapor cloud fifteen to twenty feet long hovering next to the amine absorber about twelve feet above the ground. The cloud had originated from a crack a few inches long in the side of the vessel eleven feet above the ground. The shift fire crew was summoned; in the meantime the operating employees in the vicinity of the vessel tried unsuccessfully to open valves that would have relieved the pressure within the vessel and to redirect the flow of liquified petroleum gas so that it would bypass the vessel. The shift fire crew arrived, wearing normal work clothes. The vessel's operator told his supervisor that it would be necessary to shut it down. The supervisor agreed, and had taken a step toward the control center when the vessel ruptured, emitting liquids and vapor which instantly exploded. The explosion ...