Trinity Industries Inc. v. Occupational Safety & Health Review Commission

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 23, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-60511
TRINITY INDUSTRIES INC.,
Petitioner-Cross-Respondent,
versus
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION;
Respondent
ELAINE CHAO, SECRETARY, DEPARTMENT OF LABOR,
Respondent-Cross-Petitioner,
Petition for Review from the
Occupational Safety and Health Review Commission
Docket No. 95-1597
Before SMITH, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Petitioner-Cross-Respondent, Trinity Industries Inc.
(“Trinity”), petitions for review of a decision of the Occupational
Safety and Health Review Commission (the “Review Commission”).
Trinity challenges the Review Commission’s reinstatement and
affirmation of a citation charging Trinity with violating 29 C.F.R.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
§ 1915.14(a)(1)(i). By cross-petition, the Secretary of Labor (the
“Secretary”) (1) challenges the Review Commission’s vacature of a
citation for violating 29 C.F.R. § 1915.15(e), and (2) its decision
to downgrade the characterization of Trinity’s citation for
violation of 29 C.F.R. § 1915.52(a)(2) from “willful” to “serious.”
As we conclude that the governing standard of review precludes any
relief sought by either party, we deny each party’s petition for
review.
I. FACTS & PROCEEDINGS
Insofar as the issues before us are concerned, the relevant
background facts are undisputed. They are expressed in detail in
the decision of the Review Commission,1 so we do not restate them
here.
II. ANALYSIS
Three citation items are the subject of the instant petitions.
First, the Review Commission reinstated and affirmed citation Item
2e (dismissed earlier by the ALJ), charging Trinity with violating
29 C.F.R. § 1915.14(a)(1)(i).2 Trinity argues that (1) §
1915.14(a)(1)(i) is preempted by § 1915.53, which Trinity contends
is the more specific —— and therefore prevailing —— governing
regulation, and (2) that the terms of § 1915.14(a)(1)(i) do not
1
Secretary of Labor v. Trinity Indus. Inc., 2002 O.S.H.D.
(CCH) ¶ 32,666, at *1-3, 2003 OSAHRC LEXIS 44 (Apr. 26, 2003).
2
Id. at *10-11.
2
apply to newly-constructed barges that have never contained a
hazardous or unknown cargo. Second, the Review Commission vacated
Item 2g, which charged Trinity with violating 29 C.F.R. §
1915.15(e) for failure to maintain safe conditions inside the
transoms with proper retesting.3 The Secretary seeks reinstatement
of the § 1915.15(e) charge. Third, the Secretary cross-petitions
the Review Commission’s decision to downgrade from “willful” to
“serious,” citation Item 6a charging Trinity’s with violating 29
C.F.R. § 1915.52(a)(2).
A. STANDARD OF REVIEW
The Occupational Safety and Health Act of 1970 (the “OSH Act”)
establishes a comprehensive regulatory scheme designed “to assure
so far as possible ... safe and healthful working conditions” for
“every working man and woman in the Nation.”4 In Trinity Marine
Nashville, Inc. v. OSHRC, we explained the governing standard of
review:
We are bound by the OSHRC’s findings on questions of fact
3
Id. at *11-12.
4
29 U.S.C. § 651(b). Responsibilities for setting and
enforcing workplace health and safety standards under the OSH Act
are divided between the Secretary and the Review Commission. The
Secretary is responsible for setting and enforcing the standards,
and the Review Commission carries out the “adjudicatory functions”
of the OSH Act. See Martin v. Occupational Safety and Health
Review Com’n, 499 U.S. 144, 147-48 (1991). See also id. at 151
(observing the “unusual regulatory structure established by the
Act” because “[u]nder the OSH Act, however, Congress separated
enforcement and rulemaking powers from adjudicative powers,
assigning these respective functions to two different
administrative authorities”).
3
and reasonable inferences drawn from them if they are
supported by substantial evidence on the record
considered as a whole even if this court could
justifiably reach a different result de novo. See H.B.
Zachry Co. v. OSHRC, 638 F.2d 812, 815 (5th Cir. Unit A
Mar.1981); 29 U.S.C. § 660(a). The OSHRC’s legal
conclusions are reviewed as to whether they are
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” See Corbesco, Inc.
v. Dole, 926 F.2d 422, 425 (5th Cir. 1991); 5 U.S.C. §
706(2)(A).
We review the Secretary’s interpretation of an OSHA
regulation “to assure that it is consistent with the
regulatory language and is otherwise reasonable.” See
Martin v. OSHRC, 499 U.S. 144, 156, 111 S. Ct. 1171, 113
L. Ed. 2d 117 (1991) (emphasis in original).5
Our review of the Review Commission’s order is therefore
deferential, and a “reasonable” interpretation will be upheld “so
long as the interpretation ‘sensibly conforms to the purpose and
wording of the regulations.’”6 To the extent that a conflict
exists between the interpretations of a regulation by the Review
Commission and the Secretary, we must defer to the interpretation
presented by the Secretary if it is reasonable.7
B. ITEM 2E: 29 C.F.R. § 1915.14(A)(1)(I)
Section 1915.14(a)(1)(i) addresses hot work that requires
testing by a Marine Chemist or Coast Guard-authorized person:8
5
275 F.3d 423, 426-27 (5th Cir. 2002).
6
Martin, 499 U.S. at 151 (citations omitted).
7
Id.
8
“The term ‘hot work’ means riveting, welding, burning or
other fire or spark producing operations.” 29 C.F.R. § 1915.4(r).
See also 29 C.F.R. § 1915.11(b) (defining “hot work” to include
“any activity involving riveting, welding, burning, the use of
4
The employer shall ensure that hot work is not performed
in or on any of the following confined and enclosed
spaces and other dangerous atmospheres, boundaries of
spaces or pipelines until the work area has been tested
and certified by a Marine Chemist or a U.S. Coast Guard
authorized person as “Safe for Hot Work”:
Within, on, or immediately adjacent to spaces that
contain or have contained combustible or flammable
liquids or gases.
Trinity acknowledges that it did not have a Marine Chemist9 test
the spaces inside the barge transoms for explosive vapors, instead
advancing two legal arguments to challenge the applicability of §
1915.14(a)(1)(i) to this case.
1. Preemption
Trinity argues first that § 1915.14(a)(1)(i) is preempted by
29 C.F.R. § 1915.53(e)(1), which states:
A competent person shall test the atmosphere in the space
to ensure that it does not contain explosive vapors,
since there is a possibility that some soft and greasy
preservatives may have flash points below temperatures
which may be expected to occur naturally. If such vapors
are determined to be present, no hot work shall be
commenced until such precautions have been taken as will
ensure that the welding, cutting or heating can be
performed in safety.10
powder-actuated tools or similar fire-producing operations”).
9
A “Marine Chemist” is “an individual who possesses a current
Marine Chemist Certificate issued by the National Fire Protection
Association.” 29 C.F.R. § 1915.11(b).
10
Part 1915.53 is titled “Welding, cutting and heating in way
of preservative coatings,” and § 1915.53(a) explains that “this
section shall apply to all ship repairing, shipbuilding and
shipbreaking operations except for paragraphs (e) and (f) of this
section which shall apply to ship repairing and shipbuilding and
shall not apply to shipbreaking.”
5
Although Trinity did not have a Marine Chemist check the atmosphere
inside the transoms, Michael Slavings, who is a “competent person,”
did do so.11
The OSH Act regulation addressing the preemption of a specific
regulation over a general one is 29 C.F.R. § 1910.5(c):
(1) 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.
(2) On the other hand, any standard shall apply
according to its terms to any employment and place of
employment in any industry, even though particular
standards are also prescribed for the industry, as in
subpart B or subpart R of this part, to the extent that
none of such particular standards applies.
Circuit courts have interpreted § 1910.5(c) to mean that a general
standard applies unless another standard is specifically applicable
to the same hazard.12 If, however, the particular standard does not
specifically apply to the hazard in question, then § 1910.5(c)(2)
comes into play, and the general safety standard, “essentially
‘complement[s] the specific safety standards ... by filling the
interstices necessarily remaining after the promulgation of the
11
A “competent person” is defined in 29 C.F.R. § 1915.4(o).
Section 1915.7(c) prescribes the skills and knowledge a “competent
person” must have.
12
See, e.g., Brock v. L.R. Willson & Sons, Inc., 773 F.2d
1377, 1380-81 (D.C. Cir. 1985); Donovan v. Adams Steel Erection,
Inc., 766 F.2d 804, 807-09 (3d Cir. 1985). See also Peterson Bros.
Steel Erection Co. v. Reich, 26 F.3d 573, 577 (5th Cir. 1994)
(noting, without expressly adopting, the Brock and Donovan standard
for preemption).
6
specific standard[].’”13 In other words, whether a specific
standard complements a general standard or preempts it depends on
whether the two regulations address precisely the same hazard.
Trinity insists that both § 1915.53 and § 1915.14(a)(1)(i)
target the same hazard —— namely, the presence of explosive vapors
prior to the commencement of hot work in spaces covered by a
preservative. If both standards apply, the same space has to be
tested by both a Marine Chemist and a competent person. Having a
Marine Chemist gauge the vapors instead of or in addition to a
competent person, contends Trinity, adds no additional protection
because the newly-constructed barges at issue have never contained
any cargo, much less cargo of unknown properties requiring the
special skills of a Marine Chemist.
Trinity’s interpretation that, for barges that have never
contained cargo, § 1915.53 targets the same hazard as §
1915.14(a)(1)(i), is not unreasonable. But we are constrained by
the specified standard of review and must defer to the Review
Commission’s interpretation of the regulations as long as it is
reasonable.14 The Review Commission determined that § 19.53 and §
1915.14(a)(1)(i) did not address the same hazard because the latter
regulation requires marine chemist certification to ensure that an
area was not only clear of gases generated by preservatives, but
13
Donovan, 766 F.2d at 808.
14
See Martin, 499 U.S. at 151.
7
also free of a wider range of fire hazards. Under Trinity Marine,
even if Trinity’s proffered interpretation is the more reasonable
one, the deference commanded by our standard of review requires
affirmance of the Review Commission’s decision. We therefore
affirm the Review Commission’s preemption decision.
2. Inapplicable By Its Own Terms
The second challenge Trinity advances against the §
1915.14(a)(1)(i) citation is that, by its own terms, it does not
apply to the facts of this case. In particular, the text of the
regulation requires Marine Chemist testing and certification of
spaces “[w]ithin, on or immediately adjacent to spaces that contain
or have contained combustible or flammable liquids or gases.”15
Relying on the prior version of § 1915.14(a)(1)(i) and some of its
legislative history, Trinity argues that the words “have contained”
must be interpreted to mean “have carried as cargo.” Although the
spaces inside the transoms never contained flammable liquid or gas
cargo, the Review Commission nevertheless affirmed the charge
because the “the transoms of Barge B-133 clearly contained Stoddard
solvent vapors, the gas produced during Tectyl’s curing process.”16
Although Trinity has advanced a reasonable interpretation of §
1915.14(a)(1)(i) that is supported by the regulation’s plain text,
the Review Commission’s interpretation and application is not
15
§ 1915.14(a)(1)(i) (emphasis added).
16
2002 O.S.H.D. (CCH) ¶ 32,666, at *4.
8
unreasonable. Therefore, Trinity Marine requires us to affirm the
citation.
C. ITEM 2G: VIOLATION OF § 1915.15(E)
By cross-petition, the Secretary challenges the Review
Commission’s vacature of the citation charging Trinity with failing
to maintain safe conditions in violation of § 1915.15(e). Section
1915.15(e) requires testing “to maintain a competent person’s
findings”:
After a competent person has conducted a visual
inspection and tests required in §§ 1915.12, 1915.13, and
1915.14 of this part and determined a space to be safe
for an employee to enter, he or she shall continue to
test and visually inspect spaces as often as necessary to
ensure that the required atmospheric conditions within
the tested space are maintained.17
The Secretary asserts that Trinity violated this provision because
the welding could have altered conditions in the transoms,18 and
Trinity did not have a competent person retest the bulkheads of the
barge “as often as necessary to ensure that the required
atmospheric conditions within the space are maintained.”19
The key issue is whether § 1915.15(e)’s requirement that an
employer “continue to test ... as often as necessary” means that
17
29 C.F.R. § 1915.15(e) (emphasis added).
18
Importantly, the Secretary does not allege that the
atmospheric conditions in the transoms actually changed because of
the welding. Instead, because they might have changed, argues the
Secretary, Trinity’s failure to retest the atmospheric conditions
was a willful violation of § 1915.15(e).
19
See 2002 O.S.H.D. (CCH) ¶ 32,666, at *11.
9
Trinity was obligated to perform some additional testing above and
beyond the initial test performed by its competent person.
Although we must defer to the Secretary to the extent that its
interpretation conflicts with that of the Review Commission,20 the
Secretary does not offer an interpretation that is reasonable in
light of the language of the regulation. Section 1915.15(e)’s use
of the language “as often as necessary” hinges on the professional
judgement of the competent person. And, it would be perfectly
sensible for a competent person to determine that no additional
testing is “necessary.” We therefore must deny the Secretary’s
cross-petition seeking reinstatement of the § 1915.15(e) citation.
D. ITEM 6A: § 1915.52(A)(2): WILLFUL OR SERIOUS
Finally, the Secretary contends that the Review Commission
erred in downgrading the characterization of the Item 6a citation,
based on § 1915.52(a)(2), from “willful” to “serious.”21 The OSH
Act authorizes its most severe civil penalties for an employer who
“willfully” violates a health or safety standard.22 The regulation
in question relates to fire prevention measures for hot work:
If the object to be welded, cut or heated cannot be moved
and if all the fire hazards including combustible cargoes
cannot be removed, positive means shall be taken to
confine the heat, sparks, and slag, and to protect the
20
Martin, 499 U.S. at 151.
21
See 2002 O.S.H.D. (CCH) ¶ 32,666, at *21.
22
29 U.S.C. § 666(a).
10
immovable fire hazards from them.23
The Review Commission affirmed this citation Item as a “serious”
violation because Trinity had not installed fire restraint
tarpaulins under the welding to prevent sparks from falling onto
the Tectyl-coated floor of the transom, and Trinity’s own competent
person had recognized the need for tarpaulins or shields.24
1. Defining “Willful” Violation
The OSH Act does not itself define “willful.” But Trinity and
the Secretary generally agree that, for OSHA purposes, “a willful
violation as one involving voluntary action, done either with an
intentional disregard of, or plain indifference to, the
requirements of the statute.”25 A company’s “indifference to OSHA
requirements, coupled with its disregard for the safety of its
employees, support[] a finding of a willful violation of the OSHA
regulation.”26 Recently, in A.E. Staley Mfg. Co. v. Secretary of
Labor, the D.C. Circuit agreed with the Secretary that a showing of
“plain indifference” to a violation of the OSH Act is an
alternative to “knowing or voluntary disregard” (also referred to
23
29 C.F.R. § 1915.52(a)(2) (emphasis added).
24
2002 O.S.H.D. (CCH) ¶ 32,666, at *17 & n.21.
25
Georgia Elec. Co. v. Marshall, 595 F.2d 309, 318 (5th Cir.
1979). In contrast, to prove a “serious” violation, the Secretary
must show only “the presence of a ‘substantial probability’ that a
particular violation could result in death or serious physical
harm. Whether the employer intended to violate an OSHA standard is
irrelevant.” Id.
26
Id. at 319.
11
as “conscious disregard”); thus, willfulness can be inferred from
evidence of plain indifference without direct evidence that the
employer knew of each individual violation.27 At the same time,
though, “[a] company cannot be found to have willfully violated a
standard if it exhibited a good faith, reasonable belief that its
conduct conformed to law, or if it made a good faith effort to
comply with a standard or eliminate a hazard.”28
2. The Evidence
Here, the Review Commission reversed the ALJ’s conclusion that
Trinity’s violation of § 1915.52(a)(2)’s fire prevention
requirement was willful. The Review Commission did so after
finding no evidence that the entry supervisor who authorized the
violation, Rodney Quinn, knew that his action violated OSHA
standards, or that he was “indifferent to the safety of his welding
crew.”29 This conclusion was grounded in the fact that, although
Trinity failed to use fire restraint tarpaulins to prevent sparks
27
295 F.3d 1341, 1351, 1353 (D.C. Cir. 2002).
28
American Wrecking Corp. v. Secretary of Labor, 351 F.3d
1254, 1263 (D.C. Cir. 2003) (citations omitted). See also id. at
1264 (“Mere negligence or lack of diligence is not sufficient to
establish an employer’s intentional disregard for or heightened
awareness of a violation.”).
29
2002 O.S.H.D. (CCH) ¶ 32,666, at *20 (“[T]here is no
evidence that entry supervisor Rodney Quinn knew that welding
without tarpaulins, drapes, or shields was in violation of OSHA
standards. We also find no evidence that Quinn was indifferent to
the safety of his welding crew. Quinn testified that crew members
equipped themselves with blowers, respirators, and fire
extinguishers before they entered Barge B-133 and that each welder
was paired with a fire watch.”).
12
from falling onto the Tectyl-coated floor of the transoms,
Trinity’s welding crew employed alternate means —— including the
use of ventilators, respirators, and fire extinguishers, as well as
the pairing of each welder with a fire watch —— to protect
themselves from the fire hazards. The Secretary nevertheless
asserts that these were measures required by separate OSH Act
regulations, so they cannot shield Trinity from being in willful
violation of § 1915.52(a)(2)’s mandates.
3. The Secretary Has Not Met Her Burden
Although it is true that, as Trinity acknowledged, it did not
use fire restraint tarpaulins, for the Secretary to prevail on the
plain indifference theory, she had to show that Trinity (1) was
indifferent to OSH Act requirements and (2) disregarded the safety
of its employees.30 We are bound by the Review Commission’s
findings of fact because they are supported by substantial
evidence. The Secretary has not shown that Trinity disregarded the
safety of its employees, and nothing in the record supports a
finding that Trinity acted in bad faith.31 We therefore find no
reversible error in the Review Commission’s affirmation of the §
1915.52(a)(2) citation as a serious violation rather than a willful
one.
III. CONCLUSION
30
Georgia Elec. Co., 595 F.2d at 319.
31
See American Wrecking, 351 F.3d at 1263-64.
13
For the foregoing reasons, Trinity’s and the Secretary’s
petitions for review are DENIED.
14