ON PETITION FOR REVIEW OF AN ORDER OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.
Staley, Gibbons, and Weis, Circuit Judges.
This case presents the issue of the proper scope of review of an adjudicatory final order of the Occupational Safety and Health Review Commission when the Secretary of Labor petitions for review or enforcement pursuant to § 11(b), 29 U.S.C. § 660(b) of the Occupational Safety and Health Act of 1970. Pub. L. 91-596, 1970 U.S. Code Cong. and Adm. News, p. 5177, 29 U.S.C. § 651 (The Act). The order in question reversed a decision by the Administrative Law Judge holding that Hanovia Lamp Division, Canrad Precision Industries, had on August 6, 1971 committed a serious violation of § 5 of the Act, 29 U.S.C. § 654(a). That subsection obliges each employer to furnish to each of his employees employment and a place of employment which are free from recognized hazards likely to cause them death or serious physical harm. Section 5(b) of the Act mandates that each employer shall comply with occupational safety and health standards promulgated under the Act. Thus the Act imposes on employers both a duty to provide employment free from recognized hazards (the general duty clause) and a duty to comply with specific standards promulgated by rule. Only the general duty clause is in issue in this case. Section 17 of the Act, 29 U.S.C. § 666, provides for civil penalties for violations of a § 5 duty. Civil penalties for serious violations are mandatory. 29 U.S.C. § 666(b). Penalties for violations determined to be not of a serious nature are discretionary. 29 U.S.C. § 666(c). Serious violations are defined as those where:
"there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." 29 U.S.C. § 666(j).
Section 9 of the Act, 29 U.S.C. § 658, authorizes the Secretary of Labor or his authorized representative to issue a written citation to any employer believed to have violated any duty prescribed by § 5. By Section 10, 29 U.S.C. § 659, the Secretary is authorized following the issuance of a § 9 citation, to notify the employer of the penalty proposed to be assessed. The employer may acquiesce in the proposed assessment or, pursuant to § 10(c), 29 U.S.C. § 659(c) notify the Secretary that he intends to contest the citation. If, as in this case, the employer serves notice of a contest:
"the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing (in accordance with section 554 of Title 5*fn1 but without regard to subsection (a) (3) of such section). The Commission shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief. . . ." 29 U.S.C. § 659(c).
Section 11 of the Act provides for judicial review of a § 10(c) order by a petition to the United States Court of Appeals for the circuit in which the violation is alleged to have occurred or where the employer has its principal office. The petitioner may be either a person adversely affected or aggrieved by a § 10(c) order, 29 U.S.C. § 660(a), or the Secretary, 29 U.S.C. § 660(b). On a Secretary's petition "the provisions of subsection (a) of this section  shall govern such proceedings to the extent applicable." 29 U.S.C. § 660(b). Thus whether the petitioner is the Secretary or a person adversely affected or aggrieved, this court is bound by the provisions of § 11(a) including the sentence:
"The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive." 29 U.S.C. § 660(a). See also 5 U.S.C. § 706(2).
In this case the employer contested the Secretary's citation for a serious violation throughout the administrative proceedings, but it has filed no response to the Secretary's petition for review. The Commission has, however, responded in defense of its order, and the litigation is obviously a part of the ongoing conflict between the Commission and the Secretary as to their respective roles in the enforcement of the Act. See, e.g., Brennan v. Occupational Safety & Health Review Commission (Pearl Steel Erection Company), 488 F.2d 337 (5th Cir. 1973); Brennan v. Occupational Safety & Health Review Commission (Brent Towing Co., Inc.), 481 F.2d 619 (5th Cir. 1973). Unlike the Brent Towing case, however, the employer here has not withdrawn its contest of the Secretary's citation. Thus we conclude that there is a continuing case or controversy warranting judicial review even though Hanovia has not responded to the petition for review.
The citation which produced the challenged order arose from the Secretary's investigation of an incident at Hanovia's Newark, New Jersey laboratory. Hanovia tests, manufactures and sells high energy lamps and associated equipment. On August 6, 1971 Orville Galligher, a laboratory technician, electrocuted himself while conducting an experiment. The Secretary's investigation and citation followed. When Hanovia contested the citation a hearing was held before an administrative law judge pursuant to 29 U.S.C. § 661(i), who made findings that:
"9. The [Secretary's] inspection disclosed that on August 6, 1971 the late Orville L. Galligher was working in proximity to high voltage with the cover on the service box open and wires tapped into the service box. In addition thereto, the terminals of the capacitators in the workplace referred to, were not covered and metal parts were not grounded.
16. On August 6, 1971, Hanovia failed to furnish its employee, the late Orville L. Galligher, employment and a place of employment free from recognized hazards that were causing or likely to cause death or serious physical harm to its employee, when it allowed him to work in proximity to, and with, high voltage, with the cover of the service box open, with wires tapped into the service box; with the terminals of the capacitators not covered; and metal parts ...