[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 06-16172 ELEVENTH CIRCUIT
AUGUST 3, 2007
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
OSHRC No. 98-00485
ELAINE CHAO, Secretary of Labor,
Petitioner,
versus
CAGLE'S INC.,
OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION,
Respondents.
________________________
Petition for Review of a Decision of the
Occupational Safety and Health Review Commission
________________________
(August 3, 2007)
Before TJOFLAT, HULL and COX, Circuit Judges.
PER CURIAM:
This petition for review concerns a final order of the Occupational Safety and
Health Review Commission (Commission) under the Occupational Safety and Health
Act of 1970 (“OSH Act”), 29 U.S.C. §§ 651-678. After two employees at Cagle’s
Inc.’s chicken processing plant in Collinsville, Alabama were asphyxiated after
entering a trailer containing waste breading contaminated with carbon dioxide, OSHA
inspected the worksite. Multiple citations were issued.
An Administrative Law Judge (ALJ) conducted a hearing pursuant to section
12(j) of the OSH Act, 29 U.S.C. § 66(j), and thereafter issued a decision affirming
some of the citations, but vacating the citation in question here, which alleged a
violation of the permit-required confined space (“permit space”) standard. The
Review Commission reviewed and affirmed some of the citations, but vacated the
citation in question. Petitioner Elaine Chao, the Secretary of Labor (Secretary), filed
a petition for review, contesting only the vacation of the alleged violation of the
permit space standard.
The disagreement between the Secretary and the Review Commission involves
the requirement under OSHA’s permit space standard that a space must be “large
enough and so configured that an employee can bodily enter and perform assigned
work.” 29 C.F.R. § 1910.146(b) (definition of a “confined space”). The Secretary
interpreted this to mean any space large enough and so configured that some work,
if assigned, could be performed there. The ALJ disagreed with this interpretation,
holding that the trailer was not a confined space because employees were never
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assigned work inside the trailer. The Review Commission also disagreed with the
Secretary’s interpretation, finding that there was no violation of OSHA’s permit-
space standard because “nothing in the record indicates that it was possible under the
circumstances for an employee to perform [currently] assigned work inside the
trailer.” (R.16-69 at 5.) In short, the Review Commission interpreted the regulation
to mean that employees must have current assignments that they could perform inside
the space.
The Secretary argues that her interpretation must be upheld by the Review
Commission and this court so long as the interpretation is reasonable. Thus, she
contends, the Review Commission erred as a matter of law by rejecting her
reasonable interpretation of the regulation, and we should reverse the Review
Commission’s holding. The Review Commission counters that its interpretation is
correct, it correctly determined that the citation should be vacated, and its decision
is entitled to considerable deference, subject to being overturned only if it is arbitrary
or capricious. The Secretary alternatively argues that even under the Review
Commission’s interpretation, the Review Commission erred in holding that Cagle’s
employees could not enter the trailer to perform their currently-assigned work of
dumping waste. We agree with this alternative argument.
29 C.F.R. § 1910.146(b) defines entry as “the activity by which a person passes
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through an opening into a permit-required confined space. Entry includes ensuing
work activities in that space and is considered to have occurred as soon as any part
of the entrant’s body breaks the plane of an opening into a space.” Cagle’s employees
sometimes manually dump the waste by cutting out a side of a box and emptying the
box through one of the roof openings. (R.14-42 at 6, 8.) The Secretary correctly
points out that employees could put their hands in one of the roof openings while
doing so. Because entry occurs “as soon as any part of the entrant’s body breaks the
plane of an opening into a space,” the entry of employees’ hands would qualify under
the regulation. 29 C.F.R. § 1910.146(b). Thus, it was reasonably foreseeable that
Cagle’s employees could enter the trailer in the course of doing currently-assigned
work, namely manually dumping waste into the trailer.
Accordingly, we need not resolve the dispute between the Secretary and the
Review Commission regarding the interpretation of the regulation, as Cagle’s
employees could have entered the waste breading trailer in the course of doing work
currently assigned. For that reason, we vacate the Review Commission’s holding that
Cagle’s employees could not enter the trailer to perform their currently-assigned work
of dumping waste and remand to the Review Commission for further proceedings
consistent with this opinion.
VACATED AND REMANDED.
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