dissenting:
I concur in the court’s legal analysis, but cannot join in the conclusion that the record contains sufficient evidence to support a finding of willful violation.
In order to establish the “intentional disregard” or “plain indifference” necessary for that purpose, it is not enough to establish that the employer’s negligence was the cause of the violation. This is evident from the statute’s definition of “serious violation,” which provides that that lesser category of offense is not made out if “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) (1976). Since negligent ignorance constitutes a “serious violation,” a “willful violation” presumably requires something more.
All of the cases cited by the majority in which the agency’s assessment of penalties for willful violation has been sustained involve aggravating factors not present here: prior citations for the same or similar violations, see Cedar Constr. Co. v. OSHRC, 587 F.2d 1303, 1305 (D.C.Cir.1978); Empire-Detroit Steel v. OSHRC, 579 F.2d 378, 382 (6th Cir.1978); F.X. Messina Constr. Corp. v. OSHRC, 505 F.2d 701, 702 (1st Cir.1974); or deliberate disregard of a known safety requirement (often on the mistaken assumption that some other measure would suffice), see Universal Auto Radiator Mfg. Co. v. Marshall, 631 F.2d 20, 23 (3d Cir.1980); Kent Nowlin Constr. Co. v. OSHRC, 593 F.2d 368, 372 (10th Cir.1979); National Steel & Shipbuilding Co. v. OSHRC, 607 F.2d 311, 317 (9th Cir.1979); Western Waterproofing Co. v. Marshall, 576 F.2d 139, 143 (8th Cir.), cert. denied, 439 U.S. 965, 99 S.Ct. 452, 58 L.Ed.2d 423 (1978); Intercounty Constr. Co. v. OSHRC, 522 F.2d 777, 779-80 (4th Cir.1975), cert. denied, 423 U.S. 1072, 96 S.Ct. 854, 47 L.Ed.2d 82 (1976); or failure to remedy a visibly dangerous condition known to supervisory personnel, see Central Soya De Puerto Rico v. Secretary of Labor, 653 F.2d 38, 39-40 (1st Cir.1981). Assessments for willful violation have been reversed where no more than the lack of diligence or adequate care has been shown. See, e.g., St. Joe Minerals Corp. v. OSHRC, 647 F.2d 840, 848 (8th Cir.1981); Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1165-68 (3d Cir.1980).
This court has recognized that violation of the general duty clause of the Act, as opposed to violation of a specific regulation issued by the Secretary, raises special problems of interpretation. See National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1265-67 (D.C.Cir.1973). It poses special problems of proof as well.
As a practical matter ... a more concrete evidentiary showing is required to prove willfulness in the ... context [of violation of the general duty clause].
*1424St. Joe Minerals Corp. v. OSHRC, supra, 647 F.2d at 847. This is so because, where a specific action has been mandated by law, the duty of observance is more prominent and categorical — so the level of inattention necessary to establish “indifference” is less. When, however, only a general obligation of safe practices is involved, it must be appreciably clearer, in order to establish willfulness, that the requirements for safety were either known and consciously disregarded, or else not a subject of the employer’s concern.
This principle seems to have been acknowledged by the Commission itself. In Georgia Electric Co. v. Marshall, 595 F.2d 309 (5th Cir.1979), civil penalties were imposed after a death occurred by reason of the unfortunate confluence of two violations: the erection of a steel light-pole too close to an electrical transmission line, and the reversal of the control levers on a company crane, so that when the lever was pushed in the direction marked “up” the crane would in fact go down. For the former violation, which contravened a specific regulation prohibiting the erection of steel poles within ten feet of transmission lines, the Commission imposed, and the court sustained, a penalty for willful violation; for the latter, which was a violation of the general duty clause, the Commission imposed, and the court sustained, a penalty for serious violation. The major difference, I believe, was that it was easier to discern “plain indifference” when an explicit directive of the Commission was violated than when a general obligation of safety (whether the obligation to have equipment controls marked properly or the obligation to follow generally accepted industry safety standards) was not complied with.
Here, it seems to me nothing was established except that the employer should have known that the industry standards had not been met (he has plausibly but erroneously claimed, even through this appeal, that they were met) and should have taken more effective measures to assure compliance. Ensign-Bickford took steps to design and implement a vacuum collection system and to collect and dispose of the pyrotechnic mix. Those steps were inadequate, but unless language no longer has any meaning I do not see how “plain indifference” rather than blameworthy negligence (constituting a “serious violation”) could have been found.