537 F.3d 79 (1st Cir. 2008), 07-2770, Harry C. Crooker & Sons, Inc. v. Occupational Safety And Health Review Com'n

Docket Nº07-2770.
Citation537 F.3d 79
Party NameHARRY C. CROOKER & SONS, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Elaine L. Chao, Secretary of Labor, Respondents.
Case DateAugust 11, 2008
CourtUnited States Courts of Appeals, United States Court of Appeals (1st Circuit)

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537 F.3d 79 (1st Cir. 2008)

HARRY C. CROOKER & SONS, INC., Petitioner,

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Elaine L. Chao, Secretary of Labor, Respondents.

No. 07-2770.

United States Court of Appeals, First Circuit.

August 11, 2008

Heard July 30, 2008.

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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

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Appellate Litigation, were on brief, for respondents.

Before TORRUELLA, Circuit Judge, SELYA, Circuit Judge, and DOMÍNGUEZ,[*] District Judge.

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 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. See29 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). See29 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 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

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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. See29 C.F.R. § 2200.90(d); see also P. Gioioso, 115 F.3d at 103. This timely petition for judicial review followed. See29 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 Chevron deference. See Martin v. OSHRC, 499 U.S. 144, 151-57, 111 S.Ct. 1171, 113 L.Ed.2d 117 (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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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. See5 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 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

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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. See29 C.F.R. §§ 1926.650-.652. As Crooker tells it, the use of that massive equipment 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.

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...

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7 practice notes
  • COVID-19 Vaccination and Testing; Emergency Temporary Standard
    • United States
    • Occupational Safety And Health Administration
    • Invalid date
    ...or practices establishes the existence of a hazard. See Harry C. Crooker & Sons, Inc. v. Occupational Safety & Health Rev. Comm'n, 537 F.3d 79, 85 (1st Cir. 2008); Bunge Corp. v. Sec'y of Labor, 638 F.2d 831, 834 (5th Cir. 1981). Thus, in enforcement proceedings under OSHA standards......
  • Employment law violations.
    • United States
    • American Criminal Law Review Vol. 52 Nbr. 4, September 2015
    • September 22, 2015
    ...when the work would be done, and had complete control over the work site"). (40.) See Harry C. Crooker & Sons, Inc. v. OSHRC, 537 F.3d 79, 82 (1st Cir. 2008) (holding that an employer has the burden of proof for an affirmative defense of infeasibility). But see L.R. Willson & S......
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 46 Nbr. 2, March 2009
    • March 22, 2009
    ...of Rep. Daniels); Conf. Rep. 91-1765 (1970) as printed in 1970 U.S.C.C.A.N. 5228). (37.) See Harry C. Crooker & Sons, Inc. v. OSHRC, 537 F.3d 79, 82 (1st Cir. 2008) (holding that an employer has the burden of proof for an affirmative defense of infeasibility); E & R Erectors, Inc. v......
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 47 Nbr. 2, March 2010
    • March 22, 2010
    ...See supra notes 17-25 and accompanying text (defining "employer"). (38.) See Harry C. Crooker & Sons, Inc. v. OSHRC, 537 F.3d 79, 82 (1st Cir. 2008) (holding that an employer has the burden of proof for an affirmative defense of infeasibility); E & R Erectors, Inc. v. Sec'......
  • Request a trial to view additional results
14 cases
6 books & journal articles
  • Employment law violations.
    • United States
    • American Criminal Law Review Vol. 52 Nbr. 4, September 2015
    • September 22, 2015
    ...when the work would be done, and had complete control over the work site"). (40.) See Harry C. Crooker & Sons, Inc. v. OSHRC, 537 F.3d 79, 82 (1st Cir. 2008) (holding that an employer has the burden of proof for an affirmative defense of infeasibility). But see L.R. Willson & S......
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 46 Nbr. 2, March 2009
    • March 22, 2009
    ...of Rep. Daniels); Conf. Rep. 91-1765 (1970) as printed in 1970 U.S.C.C.A.N. 5228). (37.) See Harry C. Crooker & Sons, Inc. v. OSHRC, 537 F.3d 79, 82 (1st Cir. 2008) (holding that an employer has the burden of proof for an affirmative defense of infeasibility); E & R Erectors, Inc. v......
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 47 Nbr. 2, March 2010
    • March 22, 2010
    ...See supra notes 17-25 and accompanying text (defining "employer"). (38.) See Harry C. Crooker & Sons, Inc. v. OSHRC, 537 F.3d 79, 82 (1st Cir. 2008) (holding that an employer has the burden of proof for an affirmative defense of infeasibility); E & R Erectors, Inc. v. Sec'......
  • Employment-related crimes.
    • United States
    • American Criminal Law Review Vol. 49 Nbr. 2, March 2012
    • March 22, 2012
    ...See supra notes 17-25 and accompanying text (defining "employer"). (38.) See Harry C. Crooker & Sons, Inc. v. OSHRC, 537 F.3d 79, 82 (1st Cir. 2008) (holding that an employer has the burden of proof for an affirmative defense of infeasibility); E & R Erectors, Inc. v. Sec'......
  • Request a trial to view additional results
1 provisions
  • COVID-19 Vaccination and Testing; Emergency Temporary Standard
    • United States
    • Occupational Safety And Health Administration
    • Invalid date
    ...or practices establishes the existence of a hazard. See Harry C. Crooker & Sons, Inc. v. Occupational Safety & Health Rev. Comm'n, 537 F.3d 79, 85 (1st Cir. 2008); Bunge Corp. v. Sec'y of Labor, 638 F.2d 831, 834 (5th Cir. 1981). Thus, in enforcement proceedings under OSHA standards......

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