Fluor Daniel v. Occupational Safety & Health Review Commission

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 26, 2002
No. 01-16462 THOMAS K. KAHN
________________________ CLERK

OSHRC Docket No. 96-01729

FLUOR DANIEL,
Petitioner,

versus

OCCUPATIONAL SAFETY AND HEALTH
REVIEW COMMISSION,
ELAINE L. CHAO, Secretary of Labor,
Respondents.
________________________

Petition for Review of an Order of the
Occupational Safety and Health Review Commission
_________________________
(June 26, 2002)

Before BIRCH, MARCUS and CUDAHY*, Circuit Judges.

MARCUS, Circuit Judge:

Petitioner Fluor Daniel, an engineering and construction company, appeals

an Occupational Safety and Health Review Commission (“OSHRC” or “the

*
Honorable Richard D. Cudahy, U.S. Circuit Judge for the Seventh Circuit, sitting
by designation.
Commission”) decision affirming a safety citation and penalty relating to the

company’s failure to provide emergency respirators at one of its facilities in

Burkville, Alabama. Specifically, Fluor Daniel argues that the OSHRC reached an

unreasonable conclusion and abused its discretion when it found (1) that Fluor

Daniel violated the Occupational Safety and Health Administration (“OSHA”)

standard governing respiratory protection, and (2) that Fluor Daniel committed this

violation willfully. After thorough review, we conclude that the findings of the

OSHRC are supported by substantial evidence and do not constitute an abuse of

discretion. Accordingly, we affirm.

I.

The relevant facts are reasonably straightforward. Fluor Daniel is an

engineering and construction company with approximately 30,000 employees

worldwide. Between 1985 and 1987, Fluor Daniel was responsible for the

construction of a General Electric (“GE”) manufacturing facility in Burkville,

Alabama. Under a contract with GE, Fluor Daniel has kept employees at the

facility since it opened. These employees are responsible for maintenance services

and certain additions and modifications to the plant, but they are not directly

involved in GE’s production.

2
 The Burkville facility contains one waste handling plant and five

manufacturing plants, including one that produces resin and one that produces

phosgene. As described in a GE material safety data sheet, phosgene is a

“poisonous gas [that] has an irritant effect on the eyes, skin, respiratory tract and

especially the lungs.” In addition to irritation, this potentially fatal, non-flammable

gas can cause burns, chest pains, breathing difficulties, lung congestion, dizziness,

shock, numbness, vomiting, bluish skin color, chills, and headaches. The resin

plant at Burkville is contained in a six-story, open-sided structure located

approximately fifty feet east of the phosgene plant. Though separated by a street,

the two plants are connected by a pipe rack that holds phosgene-conveying pipes.

On May 22, 1996, Fluor Daniel employees were performing installation

work to add a heat exchanger to a caustic scrubbing system on the second floor

mezzanine of the resin plant. While they were performing this job, low levels of

phosgene vented through the caustic line into the air of the resin plant. When the

phosgene was detected, the resin plant was evacuated. Because neither GE nor

Fluor Daniel provided emergency escape respirators to the Fluor Daniel employees

performing the installation work, none of the Fluor Daniel workers had such

respirators during the evacuation. Once they got out of the building, eleven of

these employees received examinations from GE’s on-site physician, who referred

3
them to a hospital in Montgomery. The employees received prophylactic treatment

at the hospital, and eight stayed for overnight observation.

The following day, May 23, 1996, OSHA compliance officers began health

inspections of the Burkville facility. As a result of these inspections, the Secretary

of Labor (“the Secretary”) charged Fluor Daniel with five counts, or “items,” of

violating OSHA standards by failing to (1) provide adequate respiratory protection

to employees during an emergency, (2) create proper alternative emergency action

plans, (3) ensure or document that the resin plant employees were trained about the

hazards of phosgene, (4) develop safe work practices to control hazards during

lockout and tagout procedures, and (5) maintain adequate hot work permits.

Of relevance to this appeal, the emergency respirator regulation in place at

the time provided that, “[i]n emergencies, or when controls required by Subpart D

of this part either fail or are inadequate to prevent harmful exposures to employees,

appropriate respiratory protective devices shall be provided by the employer and

shall be used.” 29 C.F.R. § 1926.103(a)(1) (1996).1 Subpart D, codified at 29

C.F.R. § 1926.55, listed various substances, including phosgene, which should be

avoided above certain levels. The regulation also provided that, for “gas and vapor

1
Section 1926.103(a)(1) was revised in 1998, after this case arose, to make
its requirements identical to general industry standards set forth at 29 C.F.R. §
1910.134. The new regulation is not relevant to this case.
4
contaminants immediately dangerous to life and health,” such as phosgene, the

protective devices should include a self-contained breathing apparatus, hose masks

with a blower, an air-purifying, full facepiece respirator with a chemical canister,

and, for escape only, self-rescue mouthpiece respirators. See 29 C.F.R. § 1926.103,

Table E-4 (1996).

An Administrative Law Judge (“ALJ”) affirmed the item alleging violations

of the respiratory protection and emergency action plan standards, but vacated the

remaining three items, assessing a total penalty of $32,500. Notably, with regard

to the respiratory protection regulation, the ALJ found that Fluor Daniel willfully

violated Section 1926.103(a)(1) by voluntarily disregarding the OSHA requirement

that respirators be provided during evacuation and instead relying solely on

evacuation to protect its employees.

Fluor Daniel appealed the ALJ’s decision to the OSHRC, which affirmed the

respiratory protection item and vacated the remaining items.2 In upholding the

respiratory protection count, the OSHRC specifically rejected Fluor Daniel’s

2
The OSHRC dismissed the employee training, lockout/tagout, and hot work
permit counts on the ground that the Secretary was unable to make a prima facie
showing that operations at the plant involved 10,000 pounds or more of a
flammable liquid or gas, which is required for the governing regulations to apply.
The Commission dismissed the emergency action plan claim because, at that time
of the May 1996 incident, no particular OSHA regulation required such a plan.
5
arguments that it lacked fair notice of the requirements of Section 1926, that the

Secretary was estopped from charging a respiratory protection violation, and that

there was insufficient evidence to support the finding of a willful violation. After

finding that the language of the regulation provided clear notice and that the

Secretary was not barred from bringing a respiration protection count merely

because it had never brought one against Fluor Daniel before, the Commission

explained that the evidence presented to the ALJ showed that Fluor Daniel

willfully violated the regulation. Specifically, the Commission held that Fluor

Daniel knew about the need to provide respirators during emergencies but instead

disregarded the OSHA respirator requirement and decided to rely solely on its

policy of evacuating employees in emergency situations. As a result of the willful

violation of Section 1926.103(a)(1), the OSHRC assessed Fluor Daniel a penalty of

$30,000. The company appealed the Commission’s decision to this Court pursuant

to 29 U.S.C. § 660.

II.

OSHRC decisions are entitled to considerable deference on appellate review.

Indeed, the statutory command makes this clear: “[t]he findings of the Commission

with respect to questions of fact, if supported by substantial evidence on the record

considered as a whole, shall be conclusive.” 29 U.S.C. § 660(a). We have held that

6
“[s]ubstantial evidence is more than a scintilla and is such relevant evidence as a

reasonable person would accept as adequate to support a conclusion.” J.A.M.

Builders, Inc. v. Herman, 233 F.3d 1350, 1352 (11th Cir. 2000) (quoting Lewis v.

Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). Moreover, the legal

determinations of an agency like the OSHRC are to be overturned only if they are

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

[the] law.” 5 U.S.C. § 706(2)(A); see also Reich v. Trinity Indus., 16 F.3d 1149,

1152 (11th Cir. 1994) (“This court reviews the Commission’s order to determine

whether it is in accordance with the law.”). We add that in interpreting OSHA

regulations, a reviewing court should defer to the reasonable interpretations of the

Secretary of Labor. See Martin v. OSHRC, 499 U.S. 144, 158, 111 S. Ct. 1171,

1179-80, 113 L. Ed. 2d 117 (1991). Finally, an OSHRC finding of willfulness is a

finding of fact, see J.A.M. Builders, 233 F.3d at 1352, but the Commission’s

definition or application of the term is a matter of law. See Reich, 16 F.3d at 1152.

On appeal, Fluor Daniel makes two closely-related arguments. First, the

company contends the Commission erred in determining that it had fair notice that

its respiratory protection program could be found to violate Section

1926.103(a)(1). Second, Fluor Daniel argues that, even if there was a violation, the

OSHRC acted unreasonably in concluding that the violation was willful. In light

7
of the highly deferential standard for reviewing OSHRC decisions, and based on

our review of the entire record, Fluor Daniel’s arguments cannot succeed.

A.

Fluor Daniel argues that it lacked notice Section 1926.103(a)(1) required it

to provide emergency respirators because the language of the regulation was vague

and because past inspections of the plant by government officials lulled the

company into believing that its respiratory protection program was adequate. We

are not persuaded.

As an initial matter, Fluor Daniel offers no reason for this Court to conclude

that the OSHRC acted contrary to the law when it held that Section 1926.103(a)(1)

was not vague. The regulation states, in clear terms, that “[i]n emergencies, or

when controls required by Subpart D of this part either fail or are inadequate to

prevent harmful exposures to employees, appropriate respiratory protective devices

shall be provided by the employer and shall be used.” 29 C.F.R. § 1926.103(a)(1).

As the Commission held, this standard “provide[d] clear notice that the respiratory

protection standard applied to Fluor Daniel’s facility” and “plainly required the

availability and use of respirators in emergencies or when engineering controls

failed.” The conduct for which Fluor Daniel was sanctioned was a precise

8
violation of this unambiguous regulation. Although Fluor Daniel stresses that the

incident in the resin plant did not involve a failure of engineering controls, the

company acknowledges, as it must, that the incident was in fact an emergency and

that it did not provide respirators to its employees. Fluor Daniel also does not deny

that phosgene is a hazardous gas under Subpart D of the regulation, codified at 29

C.F.R. § 1926.55. Quite simply, we agree with the OSHRC that there was nothing

vague or ambiguous about the regulation as applied to Fluor Daniel in this

situation.

Because the regulation itself was not vague, Fluor Daniel can prevail only if

it succeeds on the claim that the past inspections somehow led the company to

believe that it could not be found in violation of the respiratory protection

regulation. This argument fails, however, because we cannot disturb the OSHRC’s

findings of fact unless they are unsupported by substantial evidence. See J.A.M.

Builders, 233 F.3d at 1352. And, in this case, substantial evidence supports the

Commission’s determination that the prior inspections of the Burkville facility did

not address the issue of emergency respirators in the resin plant.

The three past inspections on which Fluor Daniel relies are a 1991 OSHA

compliance inspection and two subsequent reviews conducted between 1991 and

1996 pursuant to GE’s participation in OSHA’s Voluntary Protection Program

9
(“VPP”).3 The evidence strongly supports the Commission’s determination that

nothing in any of these inspections conveyed to Fluor Daniel the government’s

approval of the lack of emergency respirators in the resin plant. First, the 1991

visit addressed only complaints about the lack of adequate emergency respirators

in the facility’s chlorine plant, where mouthpiece respirators were provided to

Fluor Daniel employees, not in the resin plant. Dennis Bowden, Fluor Daniel’s

Construction and Site Manager at Burkville from 1985 to 1995, testified before the

ALJ he could not recall any discussion of the resin plant with the investigators

conducting the 1991 inspection. The only contrary testimony came from David

Herrington of Fluor Daniel’s corporate safety group. Although Herrington

expressed an understanding that the 1991 inspection covered the resin plant, the

value of his understanding was limited since he had no first-hand knowledge;

indeed, he was not working at Burkville at the time. Moreover, even Herrington

3
The VPP is a cooperative program that allows qualified companies with
rigorous safety practices and strong safety records to avoid regularly programmed
OSHA inspections. Even when a company participates in the VPP, OSHA
continues to monitor its safety and health practices and, when necessary, to enforce
federal standards. See Voluntary Protection Programs to Supplement Enforcement
and to Provide Safe and Healthful Working Conditions; Changes, 53 Fed. Reg.
26,339 (July 12, 1988). The Burkville plant was part of the VPP as a result of
GE’s participation in the program.
10
never said that emergency respirators were discussed as part of any inspection of

the resin plant in 1991.

The OSHA inspector’s notes did indicate that respirators were available and

used as needed in 1991, but we see no reason to disagree with the Commission’s

factual determination that these notes referred only to the chlorine plant, which was

the subject of the complaint that led to the 1991 investigation in the first place.

The same report that noted the use of respirators expressly stated that the 1991

investigation was limited in scope. As the inspector explained in his report, “a

complete inspection of all chemical units was not conducted. . . . [R]eview of the

brine operation4 and BPA [bisphenol A] facility was adequate at this time. . . .

Since the chlorine leak occurred in the brine operation, the main portion of the

investigation concentrated around this operation.” For the same reason, we cannot

fault the Commission for failing to place any stock in Bowden’s general

recollection that the OSHA compliance officer reviewed Fluor Daniel’s entire

respiratory protection program and found no deficiencies. Simply put, there is

substantial evidence to support the Commission’s decision that the 1991 inspection

did not address emergency respirators in the resin plant, and Fluor Daniel’s

4
The terms “brine operation” and “chlorine plant” are used interchangeably.
In a brine operation, chlorine is produced by passing an electric current through a
solution of brine, or salt dissolved in water.
11
suggestions to the contrary do not compel us to conclude that the Commission’s

findings were in error.

Similarly, we cannot disturb the Commission’s finding that the subsequent

VPP inspections did not address Fluor’s respiratory equipment. Absolutely

nothing in the record shows that resin plant emergency respirators were discussed

at either visit, and Fluor Daniel itself points only to Bowden’s broad testimony that

he told the inspectors that Fluor Daniel had a respiratory protection program in

place. As with the 1991 inspection, Fluor Daniel identifies no evidence indicating

that OSHA inspectors said or did anything at any time that would have induced the

company to believe that it did not need to provide emergency respirators to the

resin plant employees. Without such evidence, we cannot disturb the

Commission’s determination that Fluor Daniel was not misled by past inspections.

Therefore, the company cannot prevail on its claim that it lacked notice of the

requirements of Section 1926.103(a)(1).

Moreover, even if Fluor Daniel could show that OSHA inspectors

considered and failed to issue a citation for the lack of respirators in the resin plant

during the 1991 inspection or the VPP visits, the company would still not be able

to prevail in the absence of any affirmative approval of the lack of respirators.

Fluor Daniel makes no claim that any OSHA officials expressly said that

12
respirators were unnecessary, and mere silence by OSHA inspectors is not enough

to support a company’s claim that it was lulled into violating a regulation. As the

Commission recognized, it is well established by both the Commission and the

courts that OSHA’s failure to cite an employer during a past inspection does not,

standing alone, constitute a lack of fair notice. See, e.g., Donovan v. Daniel Marr &

Son Co., 763 F.2d 477, 484 (1st Cir. 1985) (“An employer cannot . . . rely on the

Secretary’s failure to issue citations.”); Cedar Constr. Co. v. OSHRC, 587 F.2d

1303, 1306 (D. C. Cir. 1978) (explaining that allowing companies to rely on lack

of citations in prior investigations would “discourage self-enforcement of the Act

by businessmen who have far greater knowledge about conditions at the

workplaces than do OSHA inspectors.”); Sec’y of Labor v. Peterson Bros. Steel

Erection Co., 16 O.S.H. Cas. (BNA) 1196, 1201 (OSHRC 1993) (“[I]t is well

established that an employer cannot rely on the Secretary’s failure to issue a

citation.”).

The one case that Fluor Daniel cites in support of its position that the

absence of citations in prior inspections constitutes a lack of fair notice for future

violations is inapposite. In Trinity Marine Nashville, Inc. v. OSHRC, 275 F.3d

423 (5th Cir. 2001), OSHA inspectors cited a company for violating a regulation

by using wood-framed electrical plug-in boxes in a shipyard. OSHA withdrew the

13
citation, but then cited the company again for the same violation eight years later.

Because OSHA officials “at least implicitly approved the use of the boxes” by

filing, considering, and then withdrawing the earlier citation, id. at 431, the Fifth

Circuit determined that the company had a valid claim that it lacked fair notice that

it could be cited for an identical violation years later. In this case, unlike in Trinity

Marine, there is no evidence that OSHA inspectors ever addressed, let alone

approved, the unavailability of respirators in the resin plant. All that exists here, if

anything, is past silence by OSHA officials, which cannot be construed as a sign of

approval.5

In short, there is no basis for us to conclude that the Commission erred in

finding that Fluor Daniel had proper notice that it could be held in violation of

Section 1926.103(a)(1). The language of the governing regulation was clear, and

nothing in either the 1991 inspection or the VPP visits misled Fluor into believing

that it was in compliance.

B.

5
Another case cited by Fluor Daniel, Martin v. Miami Indus., 983 F.2d 1067 (6th Cir.
1992) (unpublished table decision), is of no avail. In that case, the Sixth Circuit held that a
company did not have proper notice of a violation because the regulation at issue was vague and
because OSHA had failed to cite the violation in past inspections. The primary focus of the
opinion was the vagueness of the rule, not the past inspections. In the case before this panel, the
regulation at issue is not at all vague, as discussed above. Therefore, Fluor Daniel, unlike Miami
Industries, was plainly placed on notice of its obligations under the regulation.

14
 Fluor Daniel also argues that, even if we uphold the finding of a violation,

this Court should vacate the portion of the Commission’s decision finding that the

violation was willful. Section 666 of Title 29 of the United States Code provides,

in relevant part, that an employer who “willfully or repeatedly violates” any OSHA

standard, rule, or order, may be assessed a penalty of no more than $70,000 but no

less than $5,000 for each willful violation. 29 U.S.C. § 666(a). The statute

provides lesser penalties for “serious violations,” which occur if an employer knew

about and failed to prevent “a substantial probability that death or serious physical

harm could result from a condition which exists” in the workplace. 29 U.S.C. §

666(k). The statute provides even lesser penalties for violations deemed not

serious. See 29 U.S.C. § 666(c). A court of appeals has the power to reverse a

finding of willfulness by the OSHRC and re-classify a violation as either “serious”

or “not serious.” See, e.g., Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160 (3d

Cir. 1980). Fluor Daniel asks us to do so in this case.

Although Section 666 does not define the terms “willful” or “willfully,” we

have held that “[t]he definition of ‘willful’ in this circuit is, in its simplest form,

‘an intentional disregard of, or plain indifference to, OSHA requirements.’” Reich,

16 F.3d at 1152 (quoting Ga. Elec. Co. v. Marshall, 595 F.2d 309, 317 (5th Cir.

1979)). In order for a violation to be deemed “willful,”

15
 proof must be adduced either that (1) “[the] employer knew of an
applicable standard or provision prohibiting the conduct or condition
and consciously disregarded the standard,” or (2) that, if the employer
did not know of an applicable standard or provision’s requirements, it
exhibited such “reckless disregard for employee safety or the
requirements of the law generally that one can infer that . . . the
employer would not have cared that the conduct or conditions violated
[the standard].”

J.A.M. Builders, 233 F.3d at 1355 (quoting Sec’y of Labor v. Williams Enters.,

Inc., 13 O.S.H. Cas. (BNA) 1249, 1257 (OSHRC 1987)).

When the Secretary alleges that a violation was willful, a company cannot

defend itself by claiming that it acted in good faith. As we explained in Reich, the

intentional disregard or plain indifference test “makes irrelevant the employer’s

good faith disregard of the regulations, or the employer’s belief that its alternative

program meets the objectives of OSHA’s regulations.” 16 F.3d at 1153. Allowing

a willful violation to be imposed only in cases of bad faith would “unduly restrict

OSHA’s authority to impose its most severe sanction,” and thus undermine “the

congressional purpose of creating a strong and effective federal job safety statute.”

Id. at 1154 (quoting Ga. Elec. Co., 595 F.2d at 319). Quite simply, “[a]n

employer’s good faith belief that its alternative program is superior to OSHA’s

requirements is irrelevant to the question whether [a company] ‘wilfully’ violated

[OSHA regulations].” Id. This is because “[a]n employer must follow the law even

16
if it has a good faith belief that its own policy is wiser.” Id. (quoting RSR Corp. v.

Brock, 764 F.2d 355, 363 (5th Cir. 1985)).

Despite the clear holding in Reich that good faith is not a defense to a willful

violation, Fluor Daniel argues that the OSHRC erred by ignoring the company’s

belief that its program was in compliance with the regulation. The company

attempts to distinguish Reich by saying that it truly thought it was following the

OSHA rules, unlike the company in that case, which implemented a noise control

program that it considered superior to the OSHA program even though it did not

fully comply with the regulation. This effort to distinguish our precedent fails,

however, because the Commission found that Fluor Daniel officials knew that the

company’s failure to provide emergency respirators in the resin plant violated

Section 1926.103(a)(1). As with the determination that Fluor Daniel committed a

violation, we are bound by the Commission’s determination as long as it is

supported by substantial evidence. See J.A.M. Builders, 233 F.3d at 1352.

The OSHRC’s determination that Fluor Daniel acted willfully is supported

by substantial evidence. The single most important piece of evidence is Fluor

Daniel corporate safety group member Herrington’s own testimony that, as early as

1989, he expressed concern about the lack of respirators for Fluor Daniel

employees. Knowing that GE provided emergency respirators for GE employees

17
but not for Fluor Daniel employees, Herrington requested that Fluor Daniel change

its policy and provide these items. Nevertheless, the company made a deliberate

decision not to do so because, according to Herrington, “in the event of an

emergency, Fluor Daniel personnel were to immediately evacuate the area[, a]nd

therefore, it was not justified or warranted to provide those rescuers for contractor

personnel.”

As the Commission found, Fluor Daniel made this decision despite clearly

knowing about the need for respirators, as evidenced by Herrington’s own

comments, the unambiguous language of the OSHA regulation, the undisputed

recognition of phosgene’s dangers, and the fact that there had been a prior

emergency at the Burkville facility involving the release of chlorine in 1991. In

light of all of this evidence, we cannot conclude that the Commission erred in

holding that “Fluor Daniel’s deliberate decision not to take basic measures to help

employees protect themselves shows plain indifference to employee safety and

supports a finding that the violation was willful.” While Fluor Daniel may be

correct in asserting that other interpretations of the evidence are conceivable, there

is sufficient evidence to support the interpretation accepted by the Commission.

Fluor Daniel offers no reason for us to hold that the OSHRC erred in finding

deliberate disregard and plain indifference as a matter of fact or law. In fact, the

18
evidence reveals that this case is similar to Reich, where the company was found to

have acted willfully when it substituted its own judgment for that of the regulation.

Here, Herrington’s testimony reveals that Fluor Daniel officials intentionally opted

to ignore OSHA’s respiratory protection mandate merely because they believed

that evacuating employees was a more efficacious way of protecting workers from

a phosgene leak. This substitution of their judgment for OSHA’s is plainly barred

by our precedent. See Reich, 16 F.3d at 1154. In the end, because we can discern

no errors in the Commission’s factual findings or legal conclusions, we have no

reason to disturb the Commission’s holding that the company’s violation of

Section 1926.103(a)(1) was willful. 6

6
As a final note, Fluor Daniel offers no legal support for its contention that
the willfulness sanction was arbitrary in light of the fact that OSHA downgraded
GE’s citation for the same violation from willful to serious. Fluor Daniel points to
nothing in this record indicating that GE officials gave the same level of
consideration to the question of whether to provide emergency respirators in the
resin plant and made the same calculated decision to rely on evacuation as an
alternative. The mere fact that an OSHA inspector initially classified GE’s
violation as willful does not establish, as a matter of fact, that GE officials
consciously disregarded the OSHA standard or employee safety. See J.A.M.
Builders, 233 F.3d at 1355. For Fluor Daniel, there was powerful evidence on the
record indicating that the violation was in fact willful. The key evidence cited by
the OSHRC in this regard was the testimony of Herrington, a safety official for
Fluor Daniel, not for GE. In the absence of any evidence, let alone equally
powerful evidence relating to GE, we cannot say that GE’s violation involved the
same intentional disregard or plain indifference exhibited by Fluor Daniel. We
simply have no factual basis to find that the Commission acted arbitrarily by
downgrading GE’s violation but not Fluor Daniel’s.
19
 Accordingly, we AFFIRM the OSHRC’s determination that Fluor Daniel

willfully violated 29 C.F.R. § 1926.103(a)(1).

AFFIRMED.

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