1. Summarize the facts of the case.
2. Can a standard issued by the Secretary of Labor displace the statutory general duty standard?
3. If an employer knows that a specific standard will not protect its workers against a particular hazard but can prove that it is in full compliance with the specific standard, can the employer be held to be in violation of the general duty clause?

[General Dynamics (G.D.) manufactures M-1 tanks in a Department of Defense facility called the Detroit Arsenal Tank Plant. The tanks have internal hydraulic systems that sometimes leak during assembly. For several months prior to November 1983, G.D.
employees had used a solvent called 1,1,2 trichloro 1,2,2 trifluoroethane (solvent or freon) to clean up the oil spills. The solvent evaporates quickly. Although it is less toxic than other commercial solvents, in its gaseous state it is heavier than air and may cause serious illness or death. It tends to accumulate in assembly line pits and tank hulls, displacing oxygen and creating a risk of asphyxiation.
In high concentrations, it may also cause cardiac arrhythmia and eventual arrest. On November 29, 1983, OSHA cited G.D. for violations of Section 5(a)(1), the general duty clause of the Act, and OSHA's specific standard governing an employee's exposure to the solvent or freon. This citation followed several incidents in which employees became ill following exposure to the solvent fumes.
One incident occurred on September 21, 1983. It involved employee Charles Paling, who, after entering a tank and pouring approximately two gallons of solvent to clean a hydraulic leak, exited and used a portable device to ventilate the tank. This procedure was in apparent compliance with the ventilation requirement in a safety bulletin. Paling then reentered the tank. Another employee later discovered him inside the driver's compartment shaking and foaming from the mouth. Soon thereafter an employee at another G.D. plant died from exposure to the solvent fumes. After a hearing, the administrative law judge found that G.D. had been in compliance with the specific OSHA standard regulating employee exposure to freon (the freon standard). The ALJ then dismissed the charge alleging a general duty clause violation, believing that the specific standard preempted the general duty clause. The ALJ's decision became a final order of the OSHRC, and the UAW and the Secretary of Labor appealed.]
BUCKLEY, J….
I.
… The ALJ's opinion … refers to the general principle of statutory construction that the specific takes precedence over the general as a basis for preemption. General Dynamics urges us to accept this reasoning, noting that the principle is contained in the maxim ex-pressio unius est exclusio alterius…. First, this maxim can apply only if we assume a priori that the specific standard is exclusive of the general duty of the Act. More important, however, we cannot defeat clear and unambiguous statutory language with a Latin maxim anymore than we can with legislative history. We conclude that the Act does not empower the Secretary, and hence OSHA, to absolve employers who observe specific standards from duties otherwise imposed on them by the general duty clause. To the degree that the final order makes such a claim, it is in error.
II.
The final order also relies on an OSHA preemption regulation, 29 C.F.R. § 1910.5(c)(1), which General Dynamics here supplements with another, namely, 29 C.F.R. § 1910.5(f). Section 1910.5(c)(1) provides:
if a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process.
Section 1910.5(f) provides:
an employer who is in compliance with any standard in this part shall be deemed to be in compliance with the requirement of section 5(a)(1) of the Act, but only to the extent of the condition, practice, means, method, operation, or process covered by the standard.
… Both presumption regulations were promulgated pursuant to OSHA's authority under section 6 of the Act, 29 U.S.C. § 655 (1982). Section 6 authorizes the Secretary to promulgate safety standards. It nowhere suggests that the Secretary may promulgate standards that displace the general duty imposed by section 5(a)(1). When we compare the lack of statutory support for the construction of sections 1910.5(c)(1) and (f) that the Commission and General Dynamics reach, and the clear and unambiguous language of the general duty clause, there is no contest. On the facts in this case, section 5(a)(1) can no more be denied legal effect on the basis of OSHA's preemption regulations than it can on the basis of its specific standard.
III.
Any apparent conflict between section 5(a)(2) or the preemption regulations on the one hand, and the general duty clause on the other, is resolved when one focuses on the words "recognized hazard" in section 5(a)(1). As the Commission has pointed out in Con Agra, Inc., McMillan Co. Division, 1983-84 O.S.H. Dec. (CCH) ¶ 26,420, at 33,523 (1983):
In order to establish a section 5(a)(1) violation, the Secretary must prove: (1) the employer failed to render its workplace free of a hazard, (2) the hazard was recognized either by the cited employer or generally within the employer's industry, (3) the hazard was causing or likely to cause death or serious physical harm, and (4) there was a feasible means by which the employer could have eliminated or materially reduced the hazard.
This analysis emphasizes the fact that the duty to protect employees is imposed on the employer, and the hazards against which he has the obligation to protect necessarily include those of which he has specific knowledge. Therefore if (as is alleged in this case) an employer knows a particular safety standard is inadequate to protect his workers against the specific hazard it is intended to address, or that the conditions in his place of employment are such that the safety standard will not adequately deal with the hazards to which his employees are exposed, he has a duty under section 5(a)(1) to take whatever measures may be required by the Act, over and above those mandated by the safety standard, to safeguard his workers. In sum, if an employer knows that a specific standard will not protect his workers against a particular hazard, his duty under section 5(a)(1) will not be discharged no matter how faithfully he observes that standard. Scienter is key.
By the same token, absent such knowledge, an employer may rely on his compliance with a safety standard to absolve him from liability for any injury actually suffered by employees as a consequence of a hazard the standard was intended to address, and he will be deemed to have met his obligations under the general duty clause with respect thereto. In other words, compliance with a safety standard will not relieve an employer of his duty under section 5(a)(1); rather, it satisfies that duty. It is in this sense that it may be said that an OSHA standard preempts obligations under the general duty clause….