Petition to review a decision and order of the Occupational Safety and Health Review Commission which vacated a citation issued by the Secretary of Labor charging respondent Marquette Cement Manufacturing Company with violation of § 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a)(1) (1970).
Moore, Oakes, and Timbers, Circuit Judges.
The Secretary of Labor (Secretary) petitions us to review a decision of the Occupational Safety and Health Review Commission (Commission) which vacated the Secretary's citation of Marquette Cement Manufacturing Company (Marquette) for violating § 5(a)(1) ("general duty clause") of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. § 654(a)(1) (1970).*fn1 We grant the petition to review, set aside the order of the Commission, and remand for further proceedings.
I. FACTS AND PRIOR PROCEEDINGS
On August 29, 1973 Frank F. Rysavy, a Marquette employee of twenty-seven years, was killed while working on Marquette's premises. He died instantaneously from a crushed skull, after having been struck by a large load of bricks and debris which had been dumped from a hole in the exterior wall of Marquette's kiln building.
The dumping of this debris was part of Marquette's process of relining the interior of its kiln, a process that requires about five days and takes place four or five times a year. During this relining process Marquette disposes of worn-out bricks by placing them in a chute in the kiln building. The chute leads to a large hole in the exterior wall of the building. From that hole the bricks fall by gravity to an alleyway twenty-six feet below. The alleyway is between the kiln building and the adjacent crane storage building. Both buildings are part of Marquette's cement manufacturing plant. The alleyway is not barricaded. There is no warning sign to alert employees to the danger of free-falling bricks nor is there an enclosed chute to contain the bricks.
In response to a report of this fatality an OSHA compliance officer inspected Marquette's cement plant on September 5, 1973. On September 14 the Secretary cited Marquette, under § 17(k) of the Act, 29 U.S.C. § 666(j) (1970),*fn2 for a serious violation of § 5(a)(1) of the Act, the general duty clause. The citation described the hazards and the means to protect employees from such hazards.*fn3 The Secretary proposed a penalty of $600 and ordered abatement by October 8. Marquette contested the citation. On October 17 the Secretary filed a formal complaint with the Commission.
Unlike the citation, which had charged a violation of § 5(a)(1) of the Act, the Secretary's formal complaint charged a violation of § 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2) (1970).*fn4 Under § 5(a)(2) the Secretary charged Marquette with failure to comply with the relevant safety standard which provides that "no material shall be dropped to any point lying outside the exterior walls of the structure unless the area is effectively protected." 29 C.F.R. § 1926.852(a) (1976). The Secretary amended the citation to charge a violation of a specific standard because he believed that "respondent was engaged in the demolition and reconstruction of a brick kiln and therefore the safety and health regulations for construction found at 29 C.F.R. Part 1926 properly apply to this alleged violation."*fn5
In April 1974 the case was submitted to an administrative law judge (ALJ) on a stipulation of facts and accompanying briefs. Among the most relevant facts, as stipulated, were the following:
"6. Respondent disposes of debris resulting from the demolition of the kiln brick by dropping the material outside the exterior wall into the alleyway between the Kiln Building and the Crane Storage Building by means of an unprotected chute approximately 26 feet above the ground.
7. Respondent did not provide any protection to employees working near the alleyway between the Kiln Building and the Crane Storage Building from hazards created by falling bricks. Protective devices such as danger signs, barricades or an enclosed chute were not provided as a means of preventing employee exposure to falling bricks.
8. At approximately 8:45 p.m. on August 29, 1973 Respondent's employee, Frank F. Rysavy, while in the alleyway separating the Kiln Building and the Crane Storage Building, was struck by a large quantity of debris being dumped out of the chute from the interior of the Kiln Building. Mr. Rysavy was ...