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
-2-
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.
-3-
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
-4-
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
-5-
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
-6-
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.
-7-
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.
-8-
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.
-9-
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
-10-
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.
-11-
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
-12-
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
-13-
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.
-14-
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.
-15-