Alden Leeds, Inc. v. Occupational Safety and Health Review Commission

PRECEDENTIAL
Filed July 31, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-2764
ALDEN LEEDS, INC.,
Petitioner
v.
OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION,
Respondent
ON PETITION FOR REVIEW OF A FINAL ORDER OF THE
OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION
OSHRC Docket No. 95-1143
Commissioners Rogers, Visscher, and Weisberg
Argued January 17, 2002
Before: ALITO and ROTH, Circuit Judges, and
SCHWARZER,1 District Judge .
(Opinion Filed: July 31, 2002)
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1. The Honorable William W Schwarzer, Senior District Judge for the
Northern District of California, sitting by designation.
ERIC S. ARONSON (Argued)
STEVEN R. ROWLAND
Sills Cummis Radin Tischman
Epstein & Gross, P.A.
One Riverfront Plaza
Newark, NJ 07102
Counsel for Petitioner
HOWARD M. RADZELY
JOSEPH WOODWARD
ANN ROSENTHAL
RONALD J. GOTTLIEB (Argued)
Office of the Solicitor
U.S. Department of Labor
Suite S-4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Counsel for Respondent

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OPINION OF THE COURT
ALITO, Circuit Judge:
Alden Leeds, Inc. ("Alden Leeds") petitions for review of
an order of the Occupational Safety and Health Review
Commission ("Commission"), which upheld a notification of
failure to abate violations ("FTA notification") issued
pursuant to Section 10(b) of the Occupational Safety and
Health Act of 1970 ("Act"), 29 U.S.C. S 659(b). In 1993,
Alden Leeds was cited for 13 instances in which pool
chemicals had been improperly stored in its facility, and
Alden Leeds entered into a settlement agreement under
which it agreed to abate the violations for which it had been
cited. In 1995, the Occupational Safety and Health
Administration ("OSHA"), exercising power delegated by the
Secretary of the Department of Labor, issued the"FTA"
notification, which listed 33 different instances of improper
storage of pool chemicals.
Alden Leeds contends that the 13 specific instances of
improper storage cited in 1993 (i.e., the specific piles of
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chemicals described in that citation) constitute the
"violations" that had to be abated. Because those particular
piles no longer contravened storage requirements at the
time of the reinspection in 1994, Alden Leeds argues that
the FTA notification was unfounded. The Secretary, in
contrast, argues that improper storage practices in general
constituted the "violations" and that the persistence of
these practices at the Alden Leeds facility justified the FTA
notification. The Secretary interprets the decision of the
Commission as resting on this broad reading of the earlier
citation and settlement. We hold that this broad reading of
the citation and settlement is arbitrary and capricious, and
we thus grant the petition for review and reverse the
Commission’s decision.
I.
A.
The facts relevant to our decision are undisputed. Alden
Leeds is in the business of distributing chemicals for
swimming pools. Its facility in South Kearny, New Jersey,
includes three warehouses in which chemicals are stored
and staged for shipping. Most of the chemicals are not
hazardous, but some of them are "oxidizers" that promote
burning or even spontaneous combustion under certain
conditions. The chemicals are stored in containers that are
stacked in piles. Inventory is constantly moved around the
warehouse and turns over three or four times annually.
OSHA has not promulgated its own standards concerning
the storage of oxidizers. Instead, OSHA relies on three sets
of privately issued guidelines: a standard issued by the

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National Fire Protection Association ("NFPA"), a uniform
building code for state and local governments referred to as
BOCA, and a chemical industry guidebook known as the
Bluebook. Although these guidelines differ in details not
relevant here, they all contain certain types of
requirements. Among other things, they all limit the
maximum tonnage in a single building, the maximum
tonnage in a single pile of chemical containers, the
maximum height of a pile, the minimum aisle width
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between piles, and the minimum distance between oxidizers
and incompatible chemicals.2
In the 1990’s, OSHA conducted three inspections of the
Alden Leeds warehouses. All three were conducted by the
same compliance officer, and all three resulted in citations
for similar, storage-related infractions. This case focuses on
the second and third inspections, which occurred in 1993
and 1994, respectively. The 1994 inspection (also referred
to as the "reinspection") resulted in the 1995 FTA
notification at issue here.
The 1993 inspection followed a fire at the Alden Leeds
facility. The OSHA inspector issued a citation under the
Act’s General Duty Clause, 29 U.S.C. S 654(a). 3 After
referring to this statutory provision, the citation stated:
The employer did not furnish employment and a place
of employment which were free from recognized
hazards that were causing or likely to cause death or
serious physical harm to the employee in that:
employees were exposed to the hazard of fire from the
improper storage of highly reactive oxidizing agents:
a) 55 Jacobus Avenue -- Warehouse 2 and 3B; Class
two oxidizers were not stored in accordance with the
National Fire Protection Association (NFPA) document
43A-1990, Table A-2 (Storage of Class 2 Oxidizers) in
that the maximum tonnage requirements were
exceeded approximately 120 tons were stored in
warehouse B. The maximum tonnage allowed for
sprinklered segregated storage is 100 tons of class two
oxidizers. Violation observed on or about 8/25/93.
The citation then went on to list 12 other instances of
improper storage. These instances related to what the
Secretary characterizes as "seven categorical requirements,"
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2. Incompatible chemicals are those that, if mixed with oxidizers, can
produce a dangerous exothermic reaction or explosion.
3. The Act’s General Duty Clause imposes on every covered employer the
obligation to provide a working environment "free from recognized
hazards that are causing or are likely to cause death or serious physical
harm to his employees." 29 U.S.C. S 654(a). Here, the recognized hazard
was fire initiated or promoted by oxidizers.

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4
viz., the maximum tonnage limits for warehouses and piles,
the maximum height and width limits for piles, and the
minimum separation distance between compatible
oxidizers, between incompatible oxidizers, or between
oxidizers and walls. The citation offered compliance with
NFPA requirement 43A as a feasible method of abatement.
Alden Leeds contested the citation. Under the settlement
reached by the parties in July 1994, Alden Leeds agreed to
abate "[a]ll violations alleged in the Citation and complaint"
by October 15, 1994. ALJ-4, Exhibit D.
The Alden Leeds facility was reinspected in December
1994. Although the 13 specific instances of improper
storage cited in 1993 had all been corrected, this time
OSHA identified 33 different instances of improper storage.
These instances concerned six of the seven categories of
requirements involved in the 1993 citation. OSHA issued a
FTA notification in June 1995 and assessed a penalty of
$107,100.4
B.
Alden Leeds challenged the FTA notification before an
administrative law judge. The ALJ noted that the parties
took sharply conflicting positions as to the nature of the
1993 violations. App. 41. The ALJ observed that it was the
Secretary’s position that the 1993 citation concerned Alden
Leeds’s "storage practices, not specific conditions which
violated NFPA 43A (1990)." Id. at 40. By contrast, the ALJ
wrote, Alden Leeds’s defense "focused on the fact that the
specific conditions in its warehouses" had been changed by
the time of the reinspection in 1994. Id. Interpreting the
1993 citation, the ALJ stated that it "does not specifically
refer to storage practices" and that the listed violations
"clearly refer to specific conditions, not practices." Id. at 42.
The ALJ described the question before him as whether
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4. A failure to abate citation carries a penalty of up to $7,000 for each
day the violation remains unabated. See 29 U.S.C. S 666(d). OSHA
typically caps the number of days at 30. Here, OSHA reduced the
potential maximum fine ($210,000) by 15% because"Alden Leeds had
abated some of the specific conditions found in 1993" and again by 40%
because it is a small employer, yielding a total of $107,100. App. at 45.
5
charging Alden Leeds "with specific conditions" that
exposed employees to the hazard of fire from improper
storage of the chemicals "clearly informed" Alden Leeds that
its storage procedures were deemed hazardous by the
Secretary. Id. at 42-43. The ALJ stated that the question
was "close," but he concluded that Alden Leeds had been
clearly informed that its practices, not just the specific
instances of improper storage, had been cited. Id. The ALJ

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observed that reading the citation as limited to the specific
instances mentioned would "blink the reality of the hazard"
in warehouses where inventory is constantly changing and
piles are regularly moved. Id. at 43.
Alden Leeds appealed to the Commission, but a divided
panel affirmed, with each Commissioner issuing a separate
opinion. Alden Leads, Inc., 19 OSHC (BNA) 1007 (No. 95-
1143, 2000); App. at 12-33. The lead opinion, written by
Commissioner Rogers, concluded that the 1993 citation
gave Alden Leeds adequate notice that the hazard to be
abated was not the 13 specific instances of improper
storage listed in the 1993 citation or even the seven
"categorical requirements" to which the Secretary now
refers, but "the fire hazard caused by its storage practices."
App. at 17. See also id. at 15-16 (agreeing with the ALJ
that "Alden Leeds’ storage practices constituted the hazard
that the Secretary sought to have remedied.") Concurring,
Commissioner Weisberg stated, among other things, that
although it was undisputed that the 13 specific instances of
improper storage listed in the 1993 citation no longer
existed at the time of the reinspection, those violations had
not been abated. See id. at 22-23. Commissioner Weisberg
observed that the record strongly suggested that the
company had not taken corrective action with respect to
those specific conditions but had simply moved chemicals
around in the ordinary course of its business. See id. at 23.
Thus, Commissioner Weisberg seemed to take the position
that abatement requires not only the elimination of the
hazardous condition but also a specific intent to eliminate
the hazard.5
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5. See App. at 30 (Dissenting Opinion) (Commissioner Weisberg "would
have the Commission disallow abatements that have occurred through
‘changing conditions’ within the workplace.").
6
Commissioner Visscher dissented and concluded that the
majority had "misconstrued the 1993 citation." App. at 29.
He stated that "the only fair reading of the 1993 citation
and settlement agreement is that Alden Leeds was charged
with, and therefore required to abate, thirteen conditions
specifically identified in the citation." Id . at 30. He
continued that even if it were possible to read the citation
more broadly, Alden Leeds had not been clearly informed of
any broader abatement obligation. See id."The 1993
citation," he wrote, "did not explicitly inform Alden Leeds
that it was being cited for its overall chemical storage
practices on an on-going basis, and therefore it cannot be
enforced against the company in that manner." Id. at 31.
Alden Leeds filed a timely petition for review under 29
U.S.C. S 660(a). We review the Commission’s findings of fact
as conclusive if supported by substantial evidence on the
record, considered as a whole. See 29 U.S.C.S 660(a).
Adjudicatory conclusions are reviewed under a standard of
"arbitrary, capricious, an abuse of discretion, or otherwise

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not in accordance with the law." 5 U.S.C. S 706(2)(A);
Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541,
547 (3d Cir. 1976).
II.
A.
The Act created a tiered system of civil monetary
penalties so that an employer can be penalized according to
the gravity of its violation. See 29 U.S.C.S 666(a)-(d). In
order of increasing severity, the tiers are as follows: non-
serious violation, serious violation, willful or repeated
violation, and failure-to-correct violation. See id. A failure-
to-correct violation -- also referred to as a failure-to-abate
violation and the tier at issue here -- differs from a
"repeated" violation. The former applies if the violation
continuously existed between the initial and follow-up
inspections; the latter applies if the violation was corrected
after the initial inspection but then recurred. See Braswell
Motor Freight Lines, Inc., 5 OSHC (BNA) 1469, 1471 (No.
9480, 1977). In this proceeding, we consider only whether
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Alden Leeds’s FTA notification was proper, not whether it
committed any lesser violation.6
The specific issue before us is whether the 33 infractions
cited in 1995 may properly be penalized as a "failure to
abate" the violations cited in 1993, where none of the 13
specific instances of improper storage listed in the 1993
citation was cited in the 1995 notification but all of the
infractions listed on both occasions related to the improper
storage of oxidizers. As was the case before the ALJ and the
Commission, the the parties differ sharply about the nature
of the violations cited in 1993. The Secretary defends the
reasoning of the majority of the Commission, namely, that
in 1993 Alden Leeds was cited for -- and was given clear
notice that it had been cited for -- its general storage
practices, not just the particular instances of improper
storage listed in the citation or even particular types of
improper storage, such as having piles that exceeded the
maximum height. As the Secretary puts it, "To correct [the
violation cited in 1993], Alden Leeds had to‘free’ its
workplace of the ‘hazard of fire from the improper storage’
of oxidizers." Respondent’s Br. at 27. Alden Leeds, on the
other hand, argues that the "violations" cited in 1993 were
the 13 individual piles of chemicals and that once the
offending characteristics of those piles were remedied (e.g.,
by reducing piles cited as too heavy or too high), the 1993
violations had been abated. We hold that the majority of the
Commission acted arbitrarily and capriciously in
concluding that the 1993 citation both was based on Alden
Leeds’ general storage practices and provided clear notice to
Alden Leeds of that basis.
B.

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Under the Act, OSHA is authorized to issue a citation to
an employer if "upon inspection or investigation[OSHA]
believes that an employer has violated" any of the
_________________________________________________________________
6. On at least one prior occasion, the Commission explicitly declined to
convert a FTA notification into a lesser violation for several reasons:
inadequate notice, possibly different evidentiary standards, and the late
stage of proceedings that reach the Commission. See Braswell Motor
Freight Lines, Inc., 5 OSHC (BNA) 1469, 1471 (No. 9480, 1977).
8
standards or rules promulgated under the Act. 29 U.S.C.
S 658(a). "Each citation shall . . . fix a reasonable time for
the abatement of the violation." Id. If"an employer has
failed to correct a violation for which a citation has been
issued within the period permitted for its correction," then
OSHA may serve the employer with notification of its failure
to abate. 29 U.S.C. S 659(b) (emphasis added).
Consistent with the constitutional mandates of due
process, a defendant in an OSHA enforcement action must
receive adequate notice. The Act protects this right by
requiring that a citation "describe with particularity the
nature of the violation . . . ." 29 U.S.C. S 658(a) (emphasis
added). Other courts of appeals have interpreted this
particularity requirement. It has been held that, although
the description of the violation charged need not be
"elaborate or technical or drafted in a particular form[,]" the
description must "fairly characterize the violative condition
so that the citation is adequate both to inform the employer
of what must be changed and to allow the Commission, in
a subsequent failure-to-correct action, to determine
whether the condition was changed." Marshall v. B.W.
Harrison Lumber Co., 569 F.2d 1303, 1308 (5th Cir. 1978).
The citation "must be drafted with sufficient particularity to
inform the employer of what he did wrong, i.e. , to apprise
reasonably the employer of the issues in controversy."
Brock v. Dow Chemical, 801 F.2d 926, 930 (7th Cir. 1986).
Despite the liberality generally afforded to administrative
pleadings,7 "before penalizing a failure to correct a cited
violation, the Commission must satisfy itself that the
citation defines the ‘uncorrected’ violation with
particularity." National Realty & Construction Co. v. OSHRC,
489 F.2d 1257, 1264 n.31 (D.C. Cir. 1973). The
Commission’s own precedents confirm that OSHA may
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7. We acknowledge that, in general, OSHA citations should be construed
liberally and amended easily, because "a narrow construction of the
language of a citation would unduly cripple enforcement of the Act." Dow
Chemical, 801 F.2d at 930 (remanding because unclear whether citation
was sufficiently particular to give employer fair notice); see also Babcock
& Wilcox Co. v. OSHRC, 622 F.2d 1160, 1164 (3d Cir. 1980); National
Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1264 (D.C. Cir.
1973).
9

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issue FTA notification if "the condition or hazard found
upon reinspection is the identical one for which respondent
was originally cited" and the condition existed continuously
through the period ending with re-inspection.8 York Metal
Finishing Co., 1 OSHC (BNA) 1655, 1656 (No. 245, 1974);
Braswell, 5 OSHC (BNA) at 1470.
1. The 1993 citation. In the present case, we think that
the 1993 citation did not give Alden Leeds adequate notice
that its general "storage practices" (App. 15) were the
"violations" that it was obligated to abate. Nowhere did the
1993 citation state that Alden Leeds’s general "storage
practices" constituted the violations, nor did the citation
state that, to abate the violations, all of Alden Leeds’
storage practices had to be kept in compliance with all
applicable storage requirements of the NFPA (not to
mention BOCA and the Bluebook).
We find somewhat instructive the manner in which OSHA
uses the term "violation" in the text of the 1993 citation.
After identifying the hazard as the risk of fire from
"improper storage" in the introductory paragraph, the
citation proceeded to describe the thirteen infractions
caused by piles exceeding certain measures. The
description of each infraction (or small cluster of
infractions) concluded: "Violation observed on or about
[date]." App. at 25 et seq. (emphasis added). In other words,
OSHA’s citation used the term "violation" to refer to the
described infractions individually, rather than to non-
compliance with storage requirements collectively.
Nevertheless, the Commission upheld the FTA notification
on the grounds that "Alden Leeds’ storage practices
constituted the hazard that the Secretary sought to have
remedied" and that "[t]he citation made it abundantly clear
to Alden Leeds . . . that it was required to free its workplace
of the fire hazard caused by its storage practices." App. 15-
16.
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8. For a FTA notification to be proper, the violation must have existed
continuously from the initial citation through the re-inspection. Because
we hold that the 1993 citation cannot be considered adequate notice for
a FTA notification of inadequate general storage practices, we need not
reach the issue of continuity.
10
We cannot agree with these grounds upon which the
Commission based its decision. Instead, we agree with the
dissenting Commissioner that "the only fair reading of the
1993 citation and settlement agreement is that Alden Leeds
was charged with, and therefore required to abate, thirteen
conditions specifically identified in the citation." App. 30.
2. Actual knowledge. The Secretary argues that the
Commission found as a fact that "Alden Leeds had actual
knowledge that its abatement obligations required it to

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adopt safe storage practices (App. 16)." Respondent’s Br. at
43. We disagree. The Commission wrote in pertinent part as
follows:
The 1993 citation clearly stated what hazard was to be
abated, and Alden Leeds has never contended that it
did not know how to comply with the safety
requirements of the NFPA. Indeed, as noted above, in
June 1991, Alden Leeds’ president wrote to OSHA that
the company’s storage of oxidizers was in conformance
with the NFPA requirements. This letter shows that
Alden Leeds was well aware, even in the context of the
1990 citation, that its storage practices were at issue
and that Alden Leeds knew how to abate the violation.
App. 16 (emphasis added).
We see nothing in this passage that may be interpreted
as a factual finding that Alden Leeds knew that its
abatement obligation following the settlement of the 1993
citation had the breadth claimed by the Secretary. First, the
Commission’s finding that Alden Leeds "[knew] how to
comply with the safety requirements of the NFPA" is
obviously very different from a finding that it knew that its
abatement obligation required it to keep all of its storage
practices (or even all of its storage practices regarding
oxidizers) in compliance with the NFPA standards. Second,
it is difficult for us to see how the Commission’s statements
about a letter written by Alden Leeds’s president in 1991
can be interpreted as findings regarding Alden Leeds’s
actual knowledge about the scope of violations for which it
was cited two years later. We thus do not agree that the
Commission made the factual finding to which the
Secretary refers. Moreover, if the Commission’s opinion is
11
interpreted as containing such a finding, we hold that the
finding is not supported by substantial evidence. Certainly
no such evidence is mentioned by the Commission on the
cited page of its opinion, and the Secretary has not called
such evidence to our attention.
C.
In order to prevent any misunderstanding of the scope of
our holding, we wish to make its limits clear. We do not
hold that the 1993 citation could not have cited Alden
Leeds for categorical storage practices. We appreciate the
force of the Secretary’s argument that the purposes of the
Act would be thwarted if an employer like Alden Leeds
could escape an FTA violation (as opposed to a repeated
violation) simply by, for example, moving the location of a
pile of chemicals that was previously cited. Such an
employer could simply roll barrels from a pile previously
cited as too high to a second pile (not previously cited),
building this second pile above the height limit. In this
manner, the same pile could never be cited in two
consecutive inspections, thus ever eluding an FTA

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notification. We have no doubt that 29 U.S.C. S 666(d) was
not intended to permit such evasive maneuvers.
We appreciate the possibility, which the Secretary’s brief
highlights, that Alden Leeds may have persisted during the
relevant period in certain types or categories of improper
storage practices. The Secretary’s brief notes that the 13
infractions cited in 1993 can be grouped into seven distinct
categories, see supra, and that the 33 infractions identified
during the reinspection fall into six of the same seven
categories. The 1993 citation, however, did not give Alden
Leeds adequate notice that it would be subject to an FTA
notification if it did not correct these categories of improper
storage practices, as opposed to the specific instances of
improper storage that the citation listed. Our holding is
based on the specific wording of the 1993 citation and the
broad reading of that wording that the Commission
adopted. That interpretation, we hold, is arbitrary and
capricious and cannot be sustained.
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III.
For the foregoing reasons, the petition for review is
granted, and the decision of the Commission is reversed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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