Petition for Review; Occupational Safety & Health Review Commission; No. 88-2484.
Mansmann, Cowen and Alito, Circuit Judges.
This case comes to us on a petition for review filed by the Secretary of Labor pursuant to Section 11(b) of the Occupational Safety and Health Act of 1970 ("the Act"), 29 U.S.C. § 660(b) (1977). The Secretary asks that we review an order of the Occupational Safety and Health Review Commission which finalized the decision of an administrative law judge denying the Secretary's motion to amend the complaint and which granted summary judgment in favor of Arco Chemical Company, Inc. Because we conclude that the administrative law judge abused his discretion in failing to allow the Secretary to amend her complaint, we will grant the petition for review and will remand this matter to the Commission for further proceedings consistent with this opinion.
Although the parties controvert some of the historical facts, for the purposes of this discussion, we rely on the following facts generally agreed to by both parties as set forth in their briefs. On September 13, 1988, Arco employees conducted a fire control training exercise for a group of newly-hired employees. This exercise, which was conducted at the facilities of the Lyondell Petrochemical Company in Houston, Texas, involved the use of portable fire extinguishers owned by Lyondell Petrochemical Company.*fn1
Cherry Briggs, an Arco employee, was killed when the shell of a dry chemical fire extinguisher exploded as she attempted to charge it. Arco notified the Occupational Safety and Health Administration immediately following the accident. On the following day, an OSHA compliance officer inspected the site and the damaged extinguisher.
On October 5, 1988 OSHA cited Arco for serious violations of three OSHA regulations relating to required annual and monthly inspection and hydrostatic testing of portable fire extinguishers, 29 C.F.R. §§ 1910.157(e)(2), 1910.157(e)(3), and 1910.157(f)(4) (1989).*fn2 Arco contested the citation and the Secretary filed a complaint with the Commission. The allegations of the complaint differed somewhat from those in the original citation. In recognition of the fact that Arco did not own or control the portable fire extinguisher at issue, the complaint deleted allegations based upon the monthly and annual inspection requirements set forth in Sections 1910.157(e)(2) and (e)(3). The complaint retained the allegation based upon hydrostatic testing as set forth in Section 1910.157(f)(4) and added an allegation based upon the general responsibility of the employer with regard to inspection and maintenance of portable fire extinguishers as set forth in Section 1910.157(e)(1).*fn3 The then maximum penalty of $640.00 for each of the two violations was proposed.
Answering the complaint, Arco denied liability and raised defenses including failure to state a claim. A hearing was scheduled for May 4, 1989.
On April 17, 1989 the Secretary requested a continuance in order to conduct discovery. The continuance was granted and the parties engaged in limited discovery. On September 18, 1989, Arco filed motions to stay the proceedings and discovery and, at the same time, moved for summary judgment. In its summary judgment motion, Arco argued that reliance upon the general standard of Section 1910.157(e)(1) was inappropriate in view of the specific standards relating to maintenance and testing set forth in (e)(2) and (e)(3) and that the hydrostatic testing provisions of (f)(4) were inapplicable in that Arco was unable to conduct hydrostatic tests of fire extinguishers which it did not own or control. Discovery and other proceedings were stayed pending decision on the motion for summary judgment.
The Secretary then sought leave to amend the complaint, to include an alleged violation of Section 1910.156(d) which addresses fire fighting equipment made available to employees functioning as fire brigades.*fn4 The amended complaint would also have added an assertion that the general requirements of (e)(1) imposed a duty upon Arco to "remove" defective Lyondell fire extinguishers from service and would have deleted the alleged violation of the hydrostatic testing provisions of Section 1910.157(f)(4).
Arco opposed the Secretary's motion to amend, characterizing it as a "dilatory attempt to avoid summary judgment." Arco also claimed undue delay in the filing of the motion and argued that it would be prejudiced by "the allegation of new facts and legal theories."
The motion to amend was denied on December 7, 1989 and, on December 12, 1989, Arco's motion for summary judgment was granted. In ruling on these motions, the administrative law judge did not articulate the reasoning underlying his decisions, but commented only that Arco's arguments were "well taken." A petition by the Secretary for discretionary review by the full Commission was not granted and the rulings on the motion to amend and the motion for summary ...