Harry C. Crooker & Sons, Inc. v. Occupational Safety & Health Review Commission

United States Court of Appeals
For the First Circuit

No. 07-2770

HARRY C. CROOKER & SONS, INC.,

Petitioner,

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
AND ELAINE L. CHAO, SECRETARY OF LABOR,

Respondents.

PETITION FOR REVIEW OF AN ORDER OF THE

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Before

Torruella, Circuit Judge,
Selya, Circuit Judge,
and Domínguez,* District Judge.

Gregg R. Frame, with whom James A. McCormack and Taylor,
McCormack & Frame were on brief, for petitioner.
Amanda Strainis-Walker, Attorney, with whom Gregory F. Jacob,
Solicitor of Labor, Joseph M. Woodward, Associate Solicitor, and
Michael P. Doyle, Counsel for Appellate Litigation, were on brief,
for respondents.

August 11, 2008

*
Of the District of Puerto Rico, sitting by designation.
 SELYA, Circuit Judge. The mission of the Occupational

Safety and Health Administration (OSHA) is "to assure so far as

possible . . . safe and healthful working conditions." 29 U.S.C.

§ 651(b). Despite the salutary nature of that mission, there are

limits to what OSHA can demand of employers. This petition for

judicial review entreats us to draw such a line: to excuse

compliance with an OSHA standard on grounds of infeasibility lest

literal enforcement of the standard cripple an entire segment of

the construction industry. Discerning serious evidentiary gaps in

the petitioner's thesis, we deny the petition.

The facts are straightforward. The petitioner, Harry C.

Crooker & Sons, Inc. (Crooker), is a general contractor. On May

16, 2006, Crooker was performing construction work for the

municipality of Brunswick, Maine. During the phase of the contract

at issue here, Crooker was progressing down the length of Jordan

Avenue, alternately digging up the earth on either side of the

road, and replacing underground storm drains, water pipes, and

sewer pipes. To facilitate the work, it used a virtual armada of

heavy equipment including bulldozers, front-end loaders, and

backhoes. The individual pieces of equipment were tall, and low-

hanging power lines ran up and down the street.

On the date in question, OSHA compliance officer Steve

Warner observed one particular backhoe, a CAT 330 excavator,

operating in the vicinity of a 240-volt power line suspended

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fourteen feet from the ground. By the driver's estimate, the

distance between the power line and the top of the machine was six

to seven feet. That was several feet fewer than the ten-foot

clearance prescribed by an OSHA regulation governing the operation

of mechanized equipment in the vicinity of energized, non-insulated

power lines. See 29 C.F.R. § 1926.600(a)(6).1 Warner wrote up the

violation and demanded immediate abatement of the hazard.

Several months later, OSHA issued a formal citation and

imposed a $2,800 penalty. Crooker contested the citation and

penalty, asserting that compliance with the regulation was

infeasible given the on-the-ground realities of carrying out this

type of work in a community like Brunswick.

In April of 2007, the parties appeared before an

administrative law judge (ALJ). See 29 U.S.C. § 659(c); see also

P. Gioioso & Sons, Inc. v. OSHRC, 115 F.3d 100, 102-03 (1st Cir.

1997) (outlining administrative structure for OSHA enforcement).

Through briefing and evidence, Crooker advanced three grounds for

1
This regulation cross-references 29 C.F.R. §
1926.550(a)(15)(i), which provides that:
Except where electrical distribution and transmission
lines have been deenergized and visibly grounded at point
of work or where insulating barriers, not a part of or an
attachment to the equipment or machinery, have been
erected to prevent physical contact with the lines,
equipment or machines shall be operated proximate to
power lines only in accordance with the following . . .
[f]or lines rated 50 kV. or below, minimum clearance
between the lines and any part of the crane or load shall
be 10 feet.

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defenestrating the citation: first, that compliance with the

regulation was infeasible; second, that on these facts a general

industry standard, 29 C.F.R. § 1910.333, should be read to supplant

the regulation on which the Secretary of Labor (the Secretary)

relied; and third, that the power lines along Jordan Avenue were

fully insulated, thus obviating the ten-foot clearance requirement.

The ALJ rejected this asseverational array, determined that the

Secretary had made out a prima facie case of the violation of an

applicable OSHA standard, found that prima facie case unrebutted,

and upheld the citation and the associated penalty. See Harry C.

Crooker & Sons, Inc., 22 O.S.H. Cas. (BNA) 1135 (2007).

Crooker petitioned for discretionary review before the

Occupational Safety and Health Review Commission (the Commission).

In that petition, it renewed the main arguments that it had

advanced before the ALJ and added a claim that the Secretary had

not established a prima facie case. The Commission declined to

grant review. Consequently, the ALJ's decision became the

Commission's final order. See 29 C.F.R. § 2200.90(d); see also P.

Gioioso, 115 F.3d at 103. This timely petition for judicial review

followed. See 29 U.S.C. § 660(a).

Judicial review of federal administrative decisions is

deferential, reflecting the respect owed to specialized bodies

tasked with the orderly administration of national standards and

policies. The Commission's adjudications, however, do not command

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Chevron deference. See Martin v. OSHRC, 499 U.S. 144, 151-57

(1991); A.J. McNulty & Co. v. Sec'y of Labor, 283 F.3d 328, 332

(D.C. Cir. 2002); see generally Chevron U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).

Nevertheless, in the absence of a conflict with the Secretary's

interpretation of a regulation — and there is none here — a

reviewing court will uphold the Commission's determinations as long

as those determinations are not arbitrary, capricious, abusive of

the Commission's discretion, or otherwise contrary to law. See 5

U.S.C. § 706(2)(A); see also Capeway Roofing Sys., Inc. v. Chao,

391 F.3d 56, 58 (1st Cir. 2004). As a subsidiary matter, the

Commission's factual findings will stand whenever they are

"supported by substantial evidence on the record considered as a

whole." 29 U.S.C. § 660(a); see P. Gioioso, 115 F.3d at 108.

Crooker's most developed claim of error focuses on the

purported infeasibility of complying with section 1926.600(a)(6).

For purposes of judicial review, the Commission's determination of

feasibility vel non qualifies as a factual finding. See, e.g.,

A.J. McNulty, 283 F.3d at 334; S. Colo. Prestress v. OSHRC, 586

F.2d 1342, 1351 (10th Cir. 1978). We review it accordingly.

The premise on which Crooker's infeasibility argument

rests is sound: federal law recognizes infeasibility as an

affirmative defense in an enforcement action that charges an OSHA

violation. See, e.g., E & R Erectors, Inc. v. Sec'y of Labor, 107

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F.3d 157, 163 (3d Cir. 1997). To prevail on an infeasibility

defense, the employer must prove (i) that compliance with a

particular standard either is impossible or will render performance

of the work impossible; and (ii) that it (the employer) undertook

alternative steps to protect its workers (or that no such steps

were available). See Bancker Constr. Corp. v. Reich, 31 F.3d 32,

34 (2d Cir. 1994). And because infeasibility is an affirmative

defense, the employer must shoulder the burden of proving each of

these elements. See A.J. McNulty, 283 F.3d at 334; Bancker Constr.

31 F.3d at 34; Brock v. Dun-Par Eng'd Form Co., 843 F.2d 1135,

1138-40 (8th Cir. 1988).

In mounting an infeasibility defense here, Crooker paints

a bleak picture of awkward working conditions and on-the-job

exigencies, including a jungle of low-hanging power lines and an

urgent need to use bulky pieces of equipment to perform the

essential work. Crooker argues that, in combination, these

circumstances left it no practical choice but to operate within the

ten-foot radius surrounding the energized wires.

According to Crooker, a distinct set of trenching

regulations required it to use a backhoe on the scale of the

eleven-foot-tall CAT 330 Excavator. See 29 C.F.R. §§ 1926.650-

.652. As Crooker tells it, the use of that massive equipment

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rendered it impossible to work underneath 14-foot-high power lines

while maintaining anything close to a ten-foot clearance.2

Crooker grants that, according to the text of the

regulation at issue, deenergizing the power lines would have solved

the problem by mooting the ten-foot clearance requirement.

Anticipating this riposte, it offered testimony and affidavits

before the ALJ in an effort to show that deenergizing the power

lines would have been a practical impossibility. The lines were

service drop lines (that is, lines carrying electricity from the

main transmission line into individual residences and other

structures). As such, they were to be found up and down the length

of residential streets like Jordan Avenue and decommissioning them

would have required a stream of deenergization requests to the

public utility, Central Maine Power Company (CMP).

In an affidavit, an employee of CMP, Carol Purinton,

stated that deenergization was the utility's "least preferred

option" and in her experience would be unprecedented. Moreover,

deenergization of specific lines would require at least twenty-four

hours notice to the affected customers.

2
The ALJ gave some weight to Warner's testimony suggesting one
way that Crooker could have maneuvered its backhoe in order to
maintain a ten-foot clearance at all times. Although we may
consider Warner's testimony in this regard despite Crooker's
objection to his expertise, we find it unnecessary to do so in
order to resolve this petition.

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 Although not insignificant, such problems fall short of

satisfying either of the elements of the infeasibility defense. As

to the first element — impossibility — Crooker made only a showing

of difficulty, not a showing of infeasibility. Nothing in the

record indicates that normal foresight, planning, and patience

would not have sufficed to handle the various notice requirements

outlined by CMP's representative (and, thus, have paved the way for

deenergization).3 The fact that no prior pipe-laying operation

involved the deenergization of service drop lines is not

dispositive; the infrequent use of prophylactic measures is not a

proxy for impossibility. See Brock v. Williams Enter. of Ga.,

Inc., 832 F.2d 567, 573 (11th Cir. 1987). Moreover, the fact that

deenergization had not occurred on other projects might well be

explained by factors other than impossibility — say, lax

enforcement or a better layout of power lines.

Crooker places great emphasis on Purinton's statement

that deenergization was "the least preferred option" from CMP's

standpoint. According to Crooker, this testimony indicates that

any attempt at deenergization would have been an exercise in

futility. We disagree. At most, Purinton's words imply that CMP

3
Crooker's general superintendent, John Bishop, testified that
shortly before the hearing he contacted CMP about deenergizing
power lines and that his request was denied. This testimony does
not benefit Crooker's case: the record reveals that CMP refused to
deenergize the lines solely because Crooker failed to comply with
CMP's stated notice requirements.

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would first have explored and exhausted other possible means of

accommodating a contractor's request.

Of course, the economics of the situation are relevant;

it may be infeasible to require a company to purchase a bazooka to

kill an ant. Here, however, the economics do not make a

dispositive difference.

To begin, nothing in the record indicates why any

additional operating costs incident to deenergization could not be

passed along to the municipality. Beyond that, there is nothing in

the record to indicate that compliance with this standard would

render the work so expensive as to become economically infeasible.

Construction standards may be economically feasible even though

they are financially burdensome. See S. Colo. Prestress, 586 F.2d

at 1351.

It is even more clear that Crooker failed to present

sufficient evidence to satisfy the second element of the

infeasibility test: that it had sought out other means of

protecting its workforce from the targeted hazard (here,

electrocution) or, in the alternative, that no such alternatives

were feasible. Crooker neither explored alternative means nor took

alternative precautions.4 Thus, its argument reduces to an

4
Crooker does say that it took one precaution: employing
spotters. But Crooker was independently required to use spotters
when working in the vicinity of live power lines. See 29 C.F.R. §
1926. 550(a)(15)(iv). Thus, the use of spotters cannot plausibly
be considered an alternative precaution.

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insistence that no alternative ways of safeguarding its personnel

were available.

Purinton's testimony sinks this ship. She outlined

several specific alternatives, short of deenergization, that could

have served to protect Crooker's employees. These included

"cover[ing] up" or "relocating" power lines while work was ongoing.

Perhaps these alternatives were themselves infeasible — but Crooker

had the burden of proof, and it offered no testimony on this score.

Indeed, Crooker never contacted CMP prior to commencing work.

That ends this aspect of the matter. As said, Crooker

had the burden of proof on its affirmative defense of

infeasibility. Given the paucity of evidence that it submitted

with respect to the elements of this defense, we cannot say that

the Commission erred in concluding that the burden of proving

infeasibility had not been carried.

Crooker next posits that the Secretary should have

applied a general industry standard, 29 C.F.R. § 1910.333, to this

work site instead of the standard specific to the use of mechanized

equipment in the vicinity of live power lines. It contends that,

under certain circumstances, a general standard may be significantly

more appropriate than a more specific standard and, thus, may

preempt the application of the latter.

In framing this contention, Crooker seeks to carve an

exception into adamantine bedrock. It is apodictic that if a

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particular workplace hazard is within the compass of both a general

industry standard and a specific standard, the latter standard

controls in the event of any conflict. See 29 C.F.R. §

1910.5(c)(1)-(2); see also Williams Enter., 832 F.2d at 570; cf.

Dravo Corp. v. OSHRC, 613 F.2d 1227, 1234 (3d Cir. 1980) (explaining

that "the Secretary may hold an employer to the general industry

standards in those situations where no specific standard is

applicable").

This principle should come as no surprise. It is a

conventional canon of legal interpretation that specific provisions

trump more general ones. See, e.g., Edmonds v. United States, 520

U.S. 651, 657 (1997) ("Ordinarily, where a specific provision

conflicts with a general one, the specific governs."); Gómez v.

Rivera Rodríguez, 344 F.3d 103, 121 (1st Cir. 2003) (similar); Paul

Revere Variable Annuity Ins. Co. v. Kirshhofer, 226 F.3d 15, 21 n.8

(1st Cir. 2000) (similar). Crooker has directed us to no contrary

authority, whether in federal statutes, regulations, or case law.

Crooker's contention perhaps can be narrowly construed as

advocating the application of a more general standard exactly

because compliance with a more specific standard is infeasible. But

we already have disposed of the infeasibility defense on other,

independent grounds, see supra, thereby rendering this more narrowly

targeted claim inapposite, too.

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 This brings us to Crooker's third assignment of error.

The Commission's ground rules require the Secretary to present a

prima facie case of the violation of an OSHA standard. See D.A.

Collins Constr. Co. v. Sec'y of Labor, 117 F.3d 691, 694 (2d Cir.

1997); N.Y. State Elec. & Gas Corp. v. Sec'y of Labor, 88 F.3d 98,

105 (2d Cir. 1996); Ormet Corp., 14 O.S.H. Cas. (BNA) 2134, 2135

(1991). Crooker maintains that the Secretary defaulted on this

obligation in two distinct respects: by failing to present evidence

proving either that a hazard existed or that the power lines lacked

effective insulation. Both branches of this assertion evince

misconceptions about the allocation of burdens of proof.

The claim that the Secretary did not adduce evidence

regarding the existence of a hazard is doubly flawed. For one

thing, it was waived. Crooker omitted any mention of the claim in

his petition to the Commission for discretionary review. That

brings into play the settled rule that objections not presented to

the Commission cannot be advanced in a subsequent petition for

judicial review. See 29 U.S.C. § 660(a); see also P. Gioioso, 115

F.3d at 104-06.

To be sure, there is an exception to the exhaustion rule

for situations in which the failure to pursue an objection before

the Commission results from extraordinary circumstances. See 29

U.S.C. § 660(a). But nothing resembling extraordinary circumstances

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is evident here. The exception is, therefore, inaccessible to Crooker.

We add that, even if not waived, the claim would founder

because a standard that proscribes certain conditions presumes the

existence of a safety hazard. Thus, "the Secretary need not prove

that the violative conditions are actually hazardous." Modern Drop

Forge Co. v. Sec'y of Labor, 683 F.2d 1105, 1114 (7th Cir. 1982);

see Simplex Time Recorder Co. v. Sec'y of Labor, 766 F.2d 575, 589

n.7 (D.C. Cir. 1985) (explaining that proof of a violation of the

specific standards directed to worker safety suffices to demonstrate

the existence of a hazard). Where, as here, the Secretary

promulgates a regulation prohibiting construction equipment from

operating within ten feet of power lines carrying up to 50 kV, 29

C.F.R. § 1926.550(a)(15)(i), that regulation speaks for itself,

periculum ipsa loquitur.

A similar misprision of the Secretary's burden undermines

Crooker's assertion that the Secretary's prima facie case failed for

lack of evidence that the power lines were uninsulated. The text

of the applicable regulation identifies the existence of insulation

as an exception to the standard. See 29 C.F.R. § 1926.550(a)(15)

("Except . . . where insulating barriers . . . have been erected to

prevent physical contact with the lines . . . ."). As such, an

unbroken line of Commission precedent correctly places the burden

of both production and persuasion on the party seeking to find

shelter under that exception. See, e.g., Kaspar Electroplating

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Corp., 16 O.S.H. Cas. (BNA) 1517, 1522 (1993) ("[T]he party claiming

the benefit of an exception to the requirements of a standard has

the burden of proof of its claim."); Sec'y of Labor v. Stanbest,

Inc., 11 O.S.H. Cas. (BNA) 1222 (1983) (citing United States v.

First City Nat'l Bank of Houston, 386 U.S. 361, 366 (1967)) (same).

This reasonable approach to interpretation is in harmony with the

baseline rule for statutes. See, e.g., Meacham v. Knolls Atomic

Power Lab., 128 S. Ct. 2395, 2400 (2008) ("[T]he burden of proving

justification or exemption under a special exception to the

prohibitions of a statute generally rests on one who claims its

benefits.") (quoting FTC v. Morton Salt Co., 334 U.S. 37, 44-45

(1948) (internal quotation marks omitted)). We therefore conclude

that the Commission permissibly placed on Crooker the burden of

proving the presence of effective insulation.

To say more on these points would be supererogatory. The

upshot is that the Secretary's prima facie case was not vitiated by

the absence of proof that the power lines were uninsulated.

As a parting shot, Crooker warns that, should we uphold

the citation and concomitant penalty, we will be rendering the

commonplace activity of laying sewer pipe much more burdensome, with

dire consequences for infrastructure construction nationwide.

Common sense, it says, is reason enough to forgo enforcement of the

regulation. This argument lacks force.

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 In the first place, the evidence in this case does not

come close to justifying Crooker's perfervid rhetoric. The lack of

proof regarding its claim of infeasibility is conspicuous.

Equally as important, Crooker's warning misperceives our

role. The courts of appeals are empowered to assure the reasonable

application of OSHA regulations, not to recast those regulations in

accordance with judicial intuitions about the proper balance between

worker safety and the needs of business. See Chevron, 467 U.S. at

843-44 & n.11; Johnson v. Watts Regulator Co., 63 F.3d 1129, 1135

(1st Cir. 1995). If the regulation here at issue unfairly

disadvantages contractors — a matter on which we do not pass — that

is for the political branches,5 not for the courts.

We need go no further. For the reasons elucidated above,

the petition for judicial review is denied.

So Ordered.

5
Among other options, OSHA has established a specific
procedure for modifying or revoking standards when it is desirable
to do so. See 29 C.F.R. §§ 1911.3 - .18.

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