ELR Citation: ELR 20065
No(s). 81-4379 (5th Cir. Nov 26, 1984)

The court rules that an employer that participated in preenforcement administrative and judicial review of Occupational Safety and Health Act (OSH Act) lead standards may not raise new objections to the standards in an enforcement action. The court in the past had allowed defendants in enforcement actions to challenge the validity of regulations, even though the 60-day statutory limit for preenforcement review had run. However, those cases involved regulations promulgated under the summary procedures of OSH Act §6(a), not the elaborate notice and comment procedures of §6(b). Also, in contrast to past cases, RSR knew of its violations when it was pursuing earlier administrative and judicial review of the standards, yet it failed to raise its present objections then. Judicial and administrative economy require that the court close the door to perpetual review. The court declines to consider RSR's affirmative defense that compliance with the standards would have posed a greater hazard than noncompliance, since RSR failed to raise the defense below. Though some evidence in the record suggests a "greater hazard" defense, the record lacks evidence on key elements of the defense, and RSR did not alert the agency to the possibility of the defense or ask for a ruling on it. Finally, the court holds that substantial evidence supports the agency's characterization of the violation as serious.

Counsel for Petitioner
Michael J. Zozzillio
1333 New Hampshire Ave. NW, Suite 400, Washington DC 20036
(202) 887-4113

Counsel for Respondents
Laura V. Fargas
Office of the Solicitor
Department of Labor, Washington DC 20210
(202) 523-7675

Earl R. Ohman Jr.
Occupational Safety and Health Review Comm'n
1825 K St. NW, Washington DC 20006
(202) 634-4015

Counsel for Intervenor
Mary-Win O'Brien
United Steelworkers of America
5 Gateway Ctr., Pittsburgh PA 15222
(412) 562-2400

Before BROWN, TATE, and HIGGINBOTHAM, Circuit Judges.