Metzler v. Arcadian Corporation

REVISED
United States Court of Appeals,
Fifth Circuit.
No. 96-60126.
Cynthia A. METZLER, Secretary of Labor, Petitioner,
v.
ARCADIAN CORPORATION; and Occupational Safety and Health Review
Commission, Respondents.
April 28, 1997.
Petition for Review of a Final Order of the Occupational Safety and
Health Review Commission.
Before POLITZ, Chief Judge, and WIENER and STEWART, Circuit Judges.
STEWART, Circuit Judge:
Today we interpret the meaning of the General Duty Clause of
the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C.
§§ 651-678). This case presents the question of whether the
Secretary of Labor (Secretary) was correct when he decided to fine
Arcadian Corporation (Arcadian) on a per-employee basis for
violating the Clause. The Occupational Safety and Health Review
Commission (Commission) reversed the Secretary's decision, holding
that the unit of prosecution under the Clause is the condition that
poses a hazard to employees, and not the affected employee(s). The
Secretary filed this petition for review. We deny the petition and
hold that the General Duty Clause unambiguously provides that the
violative condition, not the employee, is the unit of prosecution.
BACKGROUND
Arcadian Corporation (Arcadian) manufactures fertilizer at a
1
plant in Lake Charles, Louisiana. A terrible accident occurred on
July 28, 1992. That day, a urea reactor at the plant exploded,
scattering the reactor and its contents over a 600-acre area. The
reactor's 19,000 pound steel head was blown 500 feet, and ammonia
o
and carbon dioxide, heated to 370 F, were released into the
atmosphere. According to the Secretary, Arcadian had detected
leaks in the liner of the reactor's pressure vessel prior to the
explosion and failed to take steps to eliminate the hazard, such as
shutting down the reactor, implementing a program to monitor the
vessel's leak detection system, and assuring that critical welds
were performed according to industry standards and design
specifications. Eighty-seven Arcadian employees were exposed to
the danger of being struck by flying debris, suffering heat and
chemical burns, and asphyxiation by toxic gases.
PROCEDURAL HISTORY
In January 1993, the Occupational Health and Safety
Administration (OSHA) cited Arcadian for violations of the OSH Act.
The Secretary of Labor argued that Arcadian willfully violated the
OSH Act's General Duty Clause, which requires employers to provide
a place of employment free from hazards that cause or are likely to
cause death or serious physical harm to employees. 29 U.S.C. §
654(a)(1). Citation 2, Item 1 alleged that Arcadian had failed to
provide Mary Poullard Smith with safe employment because the
catastrophic explosion in the pressure vessel constituted a
violation of the General Duty Clause. OSHA alleged that the
violation was willful and proposed a penalty of $50,000 and several
2
other corrective measures.1 Items 2 through 87 of Citation 2 were
identical to Item 1 except for the identity of the employee exposed
to the hazard. When all was said and done, Arcadian was assessed
a penalty of $4,350,000.
Pursuant to the OSH Act, Arcadian contested the citations
before an administrative law judge (ALJ) on the ground that the
unit of prosecution for violating the General Duty Clause is the
violative condition, not the employee or employees exposed to that
condition. After some discovery, Arcadian moved for partial
summary judgment and requested that Items 2 through 87 be vacated
and their allegations consolidated with Item 1. The Secretary of
Labor filed a cross-motion for summary judgment. At the time the
motions were filed, the record consisted essentially of the
citations and a deposition transcript of Raymond Donnelly, Director
of OSHA's Office of General Industry Compliance Assistance.
Donnelly provided uncontradicted evidence that the number 87 was a
"multiplier" which represented the number of employees exposed to
a single hazardous condition. He admitted that Arcadian was only
required to correct the condition once, not 87 times.
The ALJ sided with Arcadian, holding that Arcadian's failure
to properly inspect and maintain the reactor was a single course of
conduct that could support only one violation of the General Duty
1
29 U.S.C. § 666(a) provides that "[a]ny employer who
willfully or repeatedly violates the requirements of section 5 of
this Act [i.e., the General Duty Clause] ... may be assessed a
civil penalty of not more than $70,000 for each violation, but not
less than $5,000 for each willful violation." In 1990, Congress
increased the fine from $10,000 to $70,000 and added the $5,000
minimum penalty for willful violations.
3
Clause. The Occupational Safety and Health Review Commission
(Commission) affirmed the ALJ. In a 2-1 decision, the majority
concluded that the General Duty Clause unambiguously provided that
employers should be fined on a per-violation, rather than a
per-employee, basis. Four reasons justified the Commission's
conclusion. First, the majority argued that issuing identical
abatement orders for each employee exposed to the same hazard would
increase administrative and legal costs and would be inconsistent
with congressional intent. Second, according to the majority, the
General Duty Clause referred to employees as a group, rather than
as individuals; the phrase "each of his employees" in § 654(a)
merely refers to all employees as opposed to some. Third, the
majority viewed the Secretary's interpretation of the General Duty
Clause as a departure from previous practices, which had allowed
separate citations for each individual hazard but not for each
exposed employee. This approach was unreasonable, concluded the
Commission, because the Secretary had not explained the reason for
his departure from earlier practice. Finally, the Commission
concluded that it did not owe deference to the Secretary's
interpretation of the General Duty Clause because the Commission
viewed itself as the final adjudicator of the OSH Act and because
the statutory authority to assess penalties rested squarely with
the Commission.
The Chairman of the Commission dissented. He argued that the
Commission had upheld violation-by-violation citations in other
cases, including per-employee citations, under various OSH Act
4
standards. In his opinion, the permissibility of such citations
depends on the language of the cited provision. He concluded that
the Secretary's interpretation was compatible with the Act and did
not conflict with the plain language of the General Duty Clause.
The Chairman also stated that although the Secretary's
interpretations of the OSH Act are not generally entitled to
deference from the Commission, deference was due here because
"whether and how to cite under [the General Duty Clause] relates
directly to the Secretary's prosecutorial discretion and goes to
the heart of his enforcement authority."
The Commission ultimately remanded the case to the ALJ to
provide the Secretary an opportunity to amend the citations. The
Secretary, however, declined to do so. The ALJ thereafter
reentered an order vacating Items 2-87 and severing them from the
rest of the case. The order became the final order of the
Commission, and the Secretary filed this petition for review.
DISCUSSION
I. STANDARD OF REVIEW
We begin with the now-familiar two-step process for reviewing
an administrative agency's interpretation of a statute. Our guide
is the Supreme Court's decision in Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81
L. Ed. 2d 694 (1984), in which the Court held that we must first
apply traditional principles of statutory construction to determine
congressional intent. Id. at 842, 104 S.Ct. at 2781. "If the
intent of Congress is clear," wrote the Court, "that is the end of
5
the matter; for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress." Id. at 843,
104 S.Ct. at 2781. Second, assuming the plain language of the
statute is ambiguous (i.e., susceptible of two reasonable
interpretations) or silent on the matter at issue, "the question
for the court is whether the agency's answer is based on a
permissible construction of the statute." Id.;see United Servs.
Auto. Ass'n v. Perry, 102 F.3d 144, 146 (5th Cir.1996).
II. IS THE GENERAL DUTY CLAUSE AMBIGUOUS?
A. Principles of Statutory Construction
Step one of Chevron requires us to apply "traditional
principles of statutory construction" to determine whether Congress
expressed a clear intent with regard to the meaning of the General
Duty Clause. "In a statutory construction case, the beginning
point must be the language of the statute, and when a statute
speaks with clarity to an issue[,] judicial inquiry into the
statute's meaning, in all but the most extraordinary circumstances,
is finished." Estate of Cowart v. Nicklos Drilling Co., 505 U.S.
469, 475, 112 S. Ct. 2589, 2594, 120 L. Ed. 2d 379 (1992). When we
evaluate the terms of a statute, the Supreme Court has cautioned us
to abide by a "fundamental principle of statutory construction
(and, indeed, of language itself) that the meaning of a word cannot
be determined in isolation, but must be drawn from the context in
which it is used." Deal v. United States, 508 U.S. 129, 132, 113
S. Ct. 1993, 1996, 124 L. Ed. 2d 44 (1993); see also Babbitt v. Sweet
Home Chapter of Communities for a Great Oregon, --- U.S. ----, ----
6
, 115 S. Ct. 2407, 2411, 132 L. Ed. 2d 597 (1995). As such, a term is
not ambiguous, even though the term may be susceptible to different
interpretations, when "all but one of the meanings is ordinarily
eliminated by context." Deal, 508 U.S. at 131-32, 113 S.Ct. at
1996. At the same time, "a statute must, if possible, be construed
in such fashion that every word has some operative effect." United
States v. Nordic Village, Inc., 503 U.S. 30, 36, 112 S. Ct. 1011,
1015, 117 L. Ed. 2d 181 (1992); United States v. Rodriguez-Rios, 14
F.3d 1040, 1044 (5th Cir.1994) (en banc). Finally, "[i]n
ascertaining whether the agency's interpretation is a permissible
construction of the language, a court must look to the structure
and language of the statute as a whole." National R.R. Passenger
Corp. v. Boston and Maine Corp., 503 U.S. 407, 417, 112 S. Ct. 1394,
1401, 118 L. Ed. 2d 52 (1992).
B. The General Duty Clause
Section 654(a) of the OSH Act, known as the General Duty
Clause, states simply:
(a) Each employer—
(1) shall furnish to each of his employees employment and
a place of employment which are free from recognized
hazards that are causing or likely to cause death or
serious physical harm to his employees;
(2) shall comply with occupational safety and health
standards promulgated under this Act.
29 U.S.C. § 654(a)(1), (2) (emphasis added). Before addressing the
arguments of the parties, we find it helpful to place the Clause in
proper context. It is well-settled that the Secretary has
essentially two weapons in its arsenal of enforcement. First, the
7
Secretary may issue a citation for violations of specific standards
promulgated (through rulemaking) by the Secretary. Alternatively,
where the Secretary has not promulgated standards, he may rely on
the General Duty Clause as a "catchall provision." Pratt & Whitney
Aircraft, Div. of United Technologies Corp. v. Secretary of Labor,
649 F.2d 96, 98 (2d Cir.1981). Courts have held that enforcement
through the application of standards is preferred because standards
provide employers notice of what is required under the OSH Act.
See, e.g., Usery v. Marquette Cement Manufacturing Co., 568 F.2d
902, 905 n. 5 (2d Cir.1977) ("The standards presumably give the
employer superior notice of the alleged violation and should be
used instead of the general duty clause whenever possible.").
In this case, it is undisputed that the Secretary did not
promulgate standards which would have governed the accident at the
Arcadian plant, and so the case was brought under the General Duty
Clause. We must decide how far the Secretary may go in enforcing
the Clause, for it is clear that a per-employee unit of prosecution
carries far heavier penalties than a per-violative-condition unit
of prosecution.2 After carefully considering the arguments of the
parties, we proceed no further than step one of the Chevron
analysis and conclude that the Clause is not ambiguous because it
provides that a violative condition, not an employee, is the proper
unit of prosecution for a General Duty Clause violation. Three
2
If Arcadian had been fined on a per-violative-condition
basis, a $70,000 fine could have been the maximum penalty assessed
against Arcadian. 29 U.S.C. § 666(a). By contrast, because the
Secretary applied a per-employee formula, Arcadian was fined
$4,500,000.
8
justifications support our conclusion.
1. The Plain Meaning of the General Duty Clause
First, a plain reading of the Clause reveals that its focus
is on an employer's duty to prevent hazardous conditions from
developing in the employment itself or the physical workplace.
Indeed, the central thrust of § 654(a)(1) concerns "recognized
hazards" that cause or may cause "death or serious physical harm to
... employees." Subsection (a)(2)—the enforcement provision of the
Clause—is consistent with this interpretation. It suggests that
employers must "comply with occupational safety and health
standards promulgated" by the Secretary. Section 652(8) defines an
"occupational safety and health standard" as "a standard which
requires conditions, or the adoption or use of one or more
practices, means, methods, operations, or processes, reasonably
necessary or appropriate to provide safe or healthful employment
and places of employment." (Emphasis added). Thus, taken
together, subsections (a)(1) and (a)(2) of the General Duty Clause
are exclusively focused on an employer's duty to prevent hazardous
conditions from developing, either in employment or the place of
employment.
Our conclusion is reinforced by examining the elements the
Secretary must prove in a General Duty Clause prosecution. Seizing
on the plain terms of the Clause, courts (including our own) have
held that the Secretary must prove three elements: "(1) that the
employer failed to render its workplace "free' of a hazard which
was (2) "recognized' and (3) "causing or likely to cause death or
9
serious physical harm.' " National Realty & Constr. Co. v. OSHRC,
489 F.2d 1257, 1265 (D.C.Cir.1973).3 Plainly, the Secretary need
not prove that a particular employee in fact was exposed to a
hazardous condition.4 Consistent with the OSH Act generally, the
mere fact that a recognized hazardous condition exists and is
"likely to cause" death or serious physical harm constitutes a
sufficient showing that an employer has breached the General Duty
Clause.5 See, e.g., Whirlpool Corp. v. Marshall, 445 U.S. 1, 12,
3
Accord Kelly Springfield Tire Co., Inc. v. Donovan, 729 F.2d
317, 320-21 (5th Cir.1984); Teal v. E.I. DuPont de Nemours & Co.,
728 F.2d 799, 804 n. 6 (6th Cir.1984); Baroid Div. of NL Indus.,
Inc. v. OSHRC, 660 F.2d 439, 444 (10th Cir.1981); Pratt & Whitney
Aircraft, Div. of United Technologies Corp. v. Secretary of Labor,
649 F.2d 96, 98 (2d Cir.1981); St. Joe Minerals Corp. v. OSHRC,
647 F.2d 840, 844 (8th Cir.1981); Babcock & Wilcox Co. v. OSHRC,
622 F.2d 1160, 1164 (3d Cir.1980); Magma Copper Co. v. Marshall,
608 F.2d 373, 375 (9th Cir.1979); Georgia Elec. Co. v. Marshall,
595 F.2d 309, 321 (5th Cir.1979); Champlin Petroleum Co. v. OSHRC,
593 F.2d 637, 640 (5th Cir.1979); Marshall v. L.E. Myers Co., 589
F.2d 270, 271 (7th Cir.1978); Empire-Detroit Steel Div., Detroit
Steel Corp. v. OSHRC, 579 F.2d 378, 383 (6th Cir.1978); Titanium
Metals Corp. v. Usery, 579 F.2d 536, 540 (9th Cir.1978); Usery v.
Marquette Cement Manufacturing Co., 568 F.2d 902, 909 (2d
Cir.1977); Getty Oil Co. v. OSHRC, 530 F.2d 1143, 1145 (5th
Cir.1976). We have added a fourth element, namely, that the hazard
must be preventable. Georgia Elec. Co., 595 F.2d at 321; Getty
Oil, 530 F.2d at 1145.
4
See, e.g., Champlin Petroleum Co., 593 F.2d at 640 ("It is
the Secretary's burden to show that demonstrably feasible measures
would materially reduce the likelihood that such injury as that
which resulted from the cited hazard would have occurred."); see
also Teal, 728 F.2d at 804 ("The protection from exposure to
serious hazards is the primary purpose of the general duty clause
...." (second emphasis added)); Babcock & Wilcox Co., 622 F.2d at
1165 (rejecting the contention that the General Duty Clause
required proof that a specific employee would likely suffer harm).
5
Courts have held that a hazardous condition is "likely to
cause death or serious physical harm to ... employees" if the
Secretary presents evidence "that a practice could eventuate in
serious physical harm upon other than a freakish or utterly
10
100 S. Ct. 883, 890-91, 63 L. Ed. 2d 154 (1980); Mineral Indus. &
Heavy Constr. Group v. OSHRC, 639 F.2d 1289, 1294 (5th Cir. Unit A
1981); Illinois Power Co. v. OSHRC, 632 F.2d 25, 28 (7th
Cir.1980); Richard S. Morey, Comment, The General Duty Clause of
the Occupational Safety and Health Act of 1970, 86 HARV. L.REV. 988,
994 (1973). If it were otherwise—if proof that a particular
employee was exposed to a hazard is not required under standards
promulgated by the Secretary, but is required for General Duty
Clause violations—we would produce the anomalous result that the
"catchall" provision of the OSH Act (the General Duty Clause)
provides less protection for employees (because actual employee
exposure must be shown) than the more narrow regulatory framework
constructed by the Secretary.
The Secretary argues that if Congress intended to create a
single duty running to employees in the aggregate, then Congress
"could have omitted the words "each of' in the general duty clause,
for those words serve no purpose unless they mean that the
employer's duty runs to each individual employee rather than to
employees as a group." We simply cannot accept this construction
implausible concurrence of circumstances...." National Realty, 489
F.2d at 1265 n. 33; accord Kelly Springfield, 729 F.2d at 325;
Illinois Power Co., 632 F.2d at 28. Actual knowledge on the part
of the employer is not required; rather, "the question is whether
the hazard is recognized by the industry of which [the employer] is
a part." Brennan, 494 F.2d at 463; accord Kelly Springfield, 729
F.2d at 323; Pratt & Whitney, 649 F.2d at 101. Thus, the "likely
to cause death or serious physical harm" aspect of the General Duty
Clause violation does not require the Secretary to prove that
particular, identifiable employees in fact were exposed to a
hazardous condition. It is the dangerous condition itself that
gives rise to a violation of the Clause.
11
of the Clause. First, we have not read "each of" out of the
General Duty Clause. In the context of the Clause as a whole, with
its principal (if not exclusive) focus on hazardous conditions,
"each of" simply means that an employer's duty extends to all
employees, regardless of their individual susceptibilities (i.e.,
age or pregnancy). Second, if we were to accept the Secretary's
view that an employee is the proper unit of prosecution for a
General Duty Clause violation, we would be compelled to conclude
that, despite Arcadian's alleged egregious violation of the Clause,
if a particular employee had not in fact been exposed to the
hazardous condition at the Arcadian plant, Arcadian would not have
violated the General Duty Clause. Such a result is flatly
inconsistent with the OSH Act's central purpose of protecting
workers from hazardous conditions in employment and the workplace,
regardless of whether a particular employee has in fact been
injured or exposed to a hazard. See, e.g., Whirlpool Corp., 445
U.S. at 12, 100 S.Ct. at 890-91; Mineral Indus., 639 F.2d at 1294;
Babcock & Wilcox Co., 622 F.2d at 1165 (interpreting the General
Duty Clause); Morey, 86 HARV. L.REV. at 988, 991.
The Secretary also argues that if the General Duty Clause does
not run to each employee, we would be undermining the deterrence
function of the OSH Act generally and the General Duty Clause in
particular. "The congressional intent that civil penalties serve
as a meaningful deterrent will not be fulfilled," argues the
Secretary, " if a single $70,000 penalty is the most that can be
assessed against a large employer who willfully exposes numerous
12
employees to a known hazard in violation of the general duty
clause." Because we have concluded that an employer's duty under
the Clause is to avoid hazardous conditions, the Secretary's
argument is best addressed to Congress rather than this court. As
we said in our en banc decision in Mississippi Poultry Ass'n, Inc.
v. Madigan, 31 F.3d 293 (5th Cir.1994) (en banc) (opinion of
Wiener, J.), "[p]olicy choices are for the political branches, and
Congress is the supreme branch for making such choices." Id. at
299 (citing Chevron ). In 1990, Congress increased the civil
penalty for General Duty Clause violations from $10,000 per
violation to $70,000, and added a $5,000 minimum penalty for
willful violations. It is simply not our place in the
constitutional scheme to ignore the plain meaning of the Clause and
offer our own free-wheeling policy judgment about the proper
monetary deterrence for a General Duty Clause violation.
2. The General Duty Clause in Context
Second, our construction of the General Duty Clause is
consistent with other provisions of the OSH Act. Section 666(a)
provides that an employer "may be assessed a civil penalty of not
more than $70,000 for each violation." (Emphasis added). Because
violations of the Clause are considered "serious,"6 we look to §
666(k), which (like § 652(8)) speaks of "condition[s],"
"practices," "means," "methods," "operations," and "processes."
Here again, Congress focused on the presence of hazardous
conditions as a "violation" for purposes of assessing the maximum
6
See Pratt & Whitney, 649 F.2d at 98.
13
$70,000 penalty. Therefore, it must logically follow that a
violation of the General Duty Clause must carry
per-violative-condition penalties, and not per-employee penalties.
By contrast, the Secretary's position that the employee is the
unit of prosecution for General Duty Clause enforcement actions
runs counter to § 652(8) of the OSH Act. Section 652(8) permits the
Secretary to promulgate standards governing "conditions" and
"practices" of employment and within the workplace. See
International Union, UAW v. Occupational Safety & Health Admin.,
938 F.2d 1310, 1316 (D.C.Cir.1991). As such, the Secretary cannot
set a unit of prosecution because, in most cases, a unit of
prosecution has nothing to do with employment or workplace
practices or conditions. An employee could be a unit of violation,
however, only if the regulated condition or practice is unique to
the employee (i.e., failure to train or remove a worker). See,
e.g., Hartford Roofing, 17 BNA OSHC 1361 (No. 92-3855, 1995)
(dictum). It would therefore be anomalous for us to hold that
per-employee penalties, generally unavailable for violations of
OSHA standards, are always available for violations of the General
Duty Clause—especially in light of the fact that courts have
consistently held that standards are the preferred enforcement
mechanism and that the General Duty Clause serves as an enforcement
tool of last resort.7
7
See, e.g., Reich v. Montana Sulphur & Chemical Co., 32 F.3d
440, 445 (9th Cir.1994) ("OSHA contemplates that the Secretary will
promulgate specific safety standards to insure safe and healthful
working conditions.... The general duty clause applies when there
are no specific standards.' ") (quoting Donovan v. Royal Logging
14
3. The General Duty Clause and Penalty Assessment
Finally, our interpretation of the Clause properly recognizes
the respective roles played by the Secretary and the Commission in
penalty assessment. It is well-settled that the Commission has the
exclusive authority to assess penalties once a penalty proposed by
the Secretary is contested.8 It is also well-established that in
assessing a penalty, the Commission is guided by the four criteria
provided in § 666(j). In particular, the Commission must "giv[e]
due consideration to the appropriateness of the penalty with
respect to [1] the size of the business of the employer being
charged, [2] the gravity of the violation, [3] the good faith of
the employer, and [4] the history of previous violations." 29
U.S.C. § 666(j). When appropriate, the Commission includes the
number of employees exposed to a hazardous condition in its
Co., 645 F.2d 822, 829 (9th Cir.1981)), cert. denied, --- U.S. ----
, 115 S. Ct. 1355, 131 L. Ed. 2d 213 (1995); Pratt & Whitney, 649
F.2d at 98; Usery, 568 F.2d at 905 n. 5; cf. R.L. Sanders
Roofing Co. v. OSHRC, 620 F.2d 97, 101 (5th Cir.1980) ("If the
Secretary is concerned about employees' falling from the edge of a
flat roof, he should promulgate a regulation that specifically
addresses that hazard rather than seek to impose liability on
employers under the general duty clause for failure to protect
against it.").
8
29 U.S.C. § 666(j) ("The Commission shall have authority to
assess all civil penalties provided in this section ...." (emphasis
added)); § 659(a) (stating that the Secretary's penalty is merely
a "propos[al]"); § 659(c) ("If an employer notifies the Secretary
that he intends to contest a citation ... [t]he Commission shall
thereafter issue an order ... affirming, modifying, or vacating the
Secretary's citation or proposed penalty ...." (emphasis added));
see Donovan v. Oil, Chem., & Atomic Workers Int'l Union & Its Local
4-23, 718 F.2d 1341, 1346, 1347 (5th Cir.1983), cert. denied, 466
U.S. 971, 104 S. Ct. 2344, 80 L. Ed. 2d 818 (1984); Long Mfg. Co. v.
OSHRC, 554 F.2d 903, 908 (8th Cir.1977); California Stevedore &
Ballast Co. v. OSHRC, 517 F.2d 986, 988 (9th Cir.1975).
15
analysis of prong two of the § 666(j) inquiry.9 See J.A. Jones
Constr. Co., 15 BNA OSHC 2201, 2214, 1991-93 CCH OSHD ¶ 29,964, p.
41,033 (No. 87-2059, 1993); Kus-Tum Builders, Inc., 10 BNA OSHC
1128, 1132, 1981 CCH OSHD ¶ 25,738, p. 32,107 (No. 76-2644, 1981).
Our holding that the General Duty Clause contemplates
per-violative-condition as opposed to per-employee units of
prosecution goes hand-in-hand with the Commission's authority to
adjust (up or down) penalties depending upon the number of
employees injured or exposed to a hazardous condition. By
contrast, if we were to agree with the Secretary's construction of
the General Duty Clause and hold that OSH Act penalties for
violations of the Clause should be fixed on a per-employee basis,
we would be usurping the Commission's statutorily ordained power to
assess "all" penalties. 29 U.S.C. § 666(j). This we decline to
do.
CONCLUSION
Finding that the General Duty Clause of the OSH Act
unambiguously provides that a hazardous condition is the proper
unit of prosecution, we DENY the Secretary's petition for review
and AFFIRM the decision of the Commission.
9
The Secretary conceded this point at oral argument.
16