U.S. Department of Labor v. Tampa Electric Company

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11681
____________________
U.S. DEPARTMENT OF LABOR,
Petitioner,
versus
TAMPA ELECTRIC COMPANY,
Respondent.
____________________
Petition for Review of a Decision of the
Occupational Safety and Health Review Commission
Agency No. 17-2144
____________________
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2 Opinion of the Court 21-11681
Before NEWSOM, TJOFLAT, and ED CARNES, Circuit Judges.
NEWSOM, Circuit Judge:
In this case, we must decide whether the Tampa Electric
Company violated OSHA’s Hazardous Waste Operations and
Emergency Response standard when employees at one of its power
plants responded to an ammonia release without donning certain
protective gear. Because we conclude that the release of ammonia
at Tampa Electric’s plant wasn’t “uncontrolled” within the mean-
ing of the OSHA standard, we hold that the standard didn’t apply
to Tampa Electric’s response and, therefore, that Tampa Electric
didn’t violate it.
I
The disposition of this petition for review turns on the inter-
pretation and application of OSHA’s Hazardous Waste Operations
and Emergency Response standard—for short, “HAZWOPER.” In
relevant part, that standard states that “[e]mployees engaged in
emergency response and exposed to hazardous substances present-
ing an inhalation hazard or potential inhalation hazard shall wear
positive pressure self-contained breathing apparatus[es] while en-
gaged in emergency response.” 29 C.F.R. § 1910.120(q)(3)(iv) (em-
phasis added).
As our italics indicate, the key term here is “emergency re-
sponse,” which the regulation defines in three parts. In particular,
the first sentence quoted below explains what is an “emergency
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21-11681 Opinion of the Court 3
response,” and the second and third sentences explain what is not
an “emergency response”:
Emergency response or responding to emergencies
means a response effort by employees from outside
the immediate release area or by other designated re-
sponders (i.e., mutual aid groups, local fire depart-
ments, etc.) to an occurrence which results, or is
likely to result, in an uncontrolled release of a hazard-
ous substance. Responses to incidental releases of
hazardous substances where the substance can be ab-
sorbed, neutralized, or otherwise controlled at the
time of release by employees in the immediate release
area, or by maintenance personnel are not considered
to be emergency responses within the scope of this
standard. Responses to releases of hazardous sub-
stances where there is no potential safety or health
hazard (i.e., fire, explosion, or chemical exposure) are
not considered to be emergency responses.
29 C.F.R. § 1910.120(a)(3). The determinative question in this case
is whether the release of ammonia at Tampa Electric’s plant con-
stituted an “uncontrolled release” within the meaning of the defi-
nition’s first sentence.
On, then, to the facts. Tampa Electric operates a power
plant that uses ammonia as part of its power-generation process.
The plant receives ammonia through underground pipes that con-
nect to an aboveground apparatus called a “skid,” which processes
the ammonia into usable form. Tampa Electric’s plant is designed
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4 Opinion of the Court 21-11681
so that if the pipes transporting the ammonia become overpressur-
ized, some of the ammonia is diverted into a “sump,” an under-
ground water tank that absorbs and neutralizes the excess. If the
sump water becomes saturated with ammonia, and is thus unable
to absorb any more, the system will begin to release ammonia into
the outside air through a vent in the sump.
In May 2017, one of the underground pipes became over-
pressurized, and, as it was designed to do, the system automatically
diverted ammonia from that pipe to the sump. A short while later,
ammonia saturated the sump water, and excess ammonia began
venting to the outside. The ammonia in the air triggered a sensor
at the skid set to alarm if the ambient ammonia reached 50 parts
per million.
About 45 minutes after the ammonia began to vent, a secu-
rity guard heard the alarm sounding at the skid and smelled ammo-
nia. He began having trouble breathing and reported the leak.
Once notified, control-room personnel dispatched “rovers”—spe-
cially trained response employees—to manage the ammonia re-
lease.
Upon arriving at the skid, the rovers called the control room
and instructed those there to “isolate” one of the valves regulating
the flow of ammonia. Meanwhile, the rovers continued working
on other parts of the skid and added water to the sump. Working
together, plant personnel stopped the ammonia release, but be-
cause the rovers arrived at the skid without “self-contained
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21-11681 Opinion of the Court 5
breathing apparatus[es],” OSHA fined Tampa Electric $9,054 under
29 C.F.R. § 1910.120(q)(3)(iv).
Tampa Electric appealed the citation. The Occupational
Safety and Health Review Commission held that Tampa Electric’s
response to the ammonia release wasn’t an “emergency response”
within the meaning of the HAZWOPER standard and, therefore,
that the company hadn’t violated that standard. For the reasons
explained below, we agree and thus deny OSHA’s petition for re-
view. 1
II
To establish a prima facie case that an employer violated an
OSHA regulation, the agency must show “(1) that the regulation
applied; (2) that it was violated; (3) that an employee was exposed
to the hazard that was created; and importantly, (4) that the em-
ployer ‘knowingly disregarded’ the Act’s requirements.” Quinlan
v. Sec’y, U.S. Dep’t of Lab., 812 F.3d 832, 836 (11th Cir. 2016) (quot-
ing ComTran Grp., Inc. v. U.S. Dep’t of Lab., 722 F.3d 1304, 1307
1 We review the Commission’s factual findings for “substantial evidence” and
its legal determinations for whether they are “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with the law.” Quinlan v. Sec’y,
U.S. Dep’t of Lab., 812 F.3d 832, 836 (11th Cir. 2016) (quoting 5 U.S.C.
§ 706(2)(A) and ComTran Grp., Inc. v. U.S. Dep’t of Lab., 722 F.3d 1304, 1307
(11th Cir. 2013) (holding that the Commission and ALJs are bound to follow
the law of the circuit where the case is most likely to be appealed)).
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6 Opinion of the Court 21-11681
(11th Cir. 2013)). We begin, and here find we can end, at step
one—whether the HAZWOPER standard applied.
We agree with the Commission that Tampa Electric’s ac-
tions here didn’t constitute an “emergency response” within the
meaning of 29 C.F.R. § 1910.120(a)(3). 2 As that provision’s first
sentence explains, to be considered an “emergency response,” the
response must be “to an occurrence which results, or is likely to
result, in an uncontrolled release of a hazardous substance.” Id.(emphasis added). What does it mean for the release of a hazard-
ous substance like ammonia to be “uncontrolled”? One commonly
used dictionary explains that the word “control” means, among
other things, “to limit the level [or] intensity” of something or—in
the specific context of “a mechanical or scientific process”—to “reg-
ulate,” as in “the airflow is controlled by a fan.” Control, Oxford
Dictionary of English 379 (3d ed. 2010). Another defines the word
“control,” as relevant here, to mean “to exercise restraining or di-
recting influence over” and to “regulate [or] curb,” Control,
2 Although the Secretary of Labor has asked us to defer to his interpretation of
the HAZWOPER regulation, we decline to do so. Generally, we defer to an
agency’s interpretation of its own regulation only if (1) the regulation is “‘gen-
uinely ambiguous,’” (2) the agency’s interpretation is “‘reasonable,’” and (3)
“‘the character and context’” of the interpretation entitle it to controlling
weight. See Rafferty v. Denny’s, Inc., 13 F.4th 1166, 1179 (11th Cir. 2021)
(quoting Kisor v. Wilkie, 139 S. Ct. 2400, 2415–16 (2019)). For reasons ex-
plained in text, once the “traditional tools of construction” are brought to bear,
the HAZWOPER regulation’s “uncontrolled release” requirement is not gen-
uinely ambiguous. Rafferty, 13 F.4th at 1179.
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21-11681 Opinion of the Court 7
Webster’s Third New International Dictionary 496 (1961), and de-
fines that term’s derivative “controlled” to mean “restrained, man-
aged, or kept within bounds,” or “conducted or maintained in ac-
cordance with fixed rules, restraints, or procedures,” id., Con-
trolled. It follows, therefore, that an “uncontrolled” release is one
that isn’t regulated, restrained, or directed, or whose level or inten-
sity isn’t limited. 3
Assessing whether a particular release was “uncontrolled”
will often turn on the specific facts and circumstances of the situa-
tion. In making the uncontrolled-release determination, a court
must inquire whether the entity charged with violating
3 It should be noted that § 1910.120(a)(3)’s first sentence makes clear that it is
the “release” itself, not the underlying “substance,” that either was or wasn’t
“uncontrolled.” The provision’s second sentence, which effectively creates an
exception to the first, operates a bit differently, making the “substance”—ra-
ther than the “release”—the object of “control[].” That sentence, again, states
that “[r]esponses to incidental releases of hazardous substances where the sub-
stance can be absorbed, neutralized, or otherwise controlled at the time of re-
lease by employees in the immediate release area, or by maintenance person-
nel are not considered to be emergency responses within the scope of this
standard.” OSHA seems to conflate the first two sentences, arguing that
Tampa Electric was engaged in an “emergency response” because the ammo-
nia was “uncontrolled” once released. See Br. of Appellant at 33; Oral Arg. at
04:05–07:28. For better or worse, that’s just not how the regulation operates,
at least as promulgated. Because we conclude that the “release” itself wasn’t
“uncontrolled” within the meaning of § 1910.120(a)(3)’s first sentence—and
thus the regulation’s rule—we have no occasion to consider whether the “sub-
stance” (i.e., the ammonia) “c[ould] be . . . controlled” within the meaning of
the second sentence’s exception.
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8 Opinion of the Court 21-11681
HAZWOPER meaningfully regulated, restrained, or directed the
release by limiting the amount of the substance emitted or the in-
tensity of its emission. Contrary to the strongest version of Tampa
Electric’s position, it is not a complete answer that a plant facility
operated according to plan. If, for instance, a plant were designed
so that if a pipe became overpressurized, it would simply explode
along a weak seam—thereby indiscriminately spewing its contents
into the air—the plant owner couldn’t defend by arguing that it had
fashioned the pipe to explode just so, that its facility had performed
precisely as designed, and therefore, that the release wasn’t “un-
controlled.” See Oral Arg. at 17:00–17:25, 33:02–33:20.
On the flip side, though, it can’t be, as OSHA has at times
insisted, that any release of a gaseous substance into the air, no mat-
ter how carefully regulated, restrained, and directed, is by defini-
tion “uncontrolled” simply because the gas may well disperse. See
id. at 06:23–06:30. That’s so for two reasons—one legal and the
other practical. As a matter of law, OSHA’s sweeping theory effec-
tively reads the word “uncontrolled” out of the regulation, at least
as it applies to releases of gas, contrary to the usual rule that “[i]f
possible, every word and every provision is to be given effect” and
“[n]one should be ignored.” Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 174 (2012). And as
a matter of practice, it seems to us indisputable that a plant owner
can take responsible steps to meaningfully limit the amount of gas
released into the atmosphere and thereby mitigate harm.
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21-11681 Opinion of the Court 9
Due to the myriad ways in which a release may occur, we
doubt the existence of a bright-line rule for determining when a
release is uncontrolled. Here, though, we are satisfied that Tampa
Electric designed a response system to manage when, how, and to
what extent ammonia would be emitted in the event of a pipe over-
pressurization and thereby adequately “[]controlled” the release. A
“release” is as much an ongoing “process” as a one-time event, see
Release, Oxford Dictionary of English at 1500, and we hold that at
each stage of the process here, Tampa Electric meaningfully regu-
lated, restrained, and directed the release of ammonia at its plant.
When the pipe overpressurization occurred, Tampa Electric’s
plant design controlled the release by (1) initially diverting some of
the ammonia into the sump to be neutralized and then (2) venting
excess, unabsorbable ammonia into the air. In so doing, Tampa
Electric limited the amount of ammonia that was released into the
air at any given time and prevented the overpressurized pipe from
rupturing and releasing all its contents at once. And once the ex-
cess ammonia was in the air, Tampa Electric’s rovers further con-
trolled the release by isolating the ammonia valve and adding wa-
ter to the sump so that the sump could absorb more of the chemi-
cal.
Accordingly, we hold that the release here was controlled—
or, in the words of the regulation, that it wasn’t “uncontrolled.”
Because the release wasn’t uncontrolled, the response to it wasn’t
an “emergency response,” and the HAZWOPER standard didn’t
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10 Opinion of the Court 21-11681
apply to the rovers’ conduct. And because the HAZWOPER stand-
ard didn’t apply, Tampa Electric didn’t violate it.
The petition for review is DENIED and the order of the
Commission is AFFIRMED.