Daniel v. Osha Review Commission, 01-16462

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
PartiesFLUOR DANIEL, Petitioner , v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, ELAINE L. CHAO, Secretary of Labor, Respondents.UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Docket Number11,01-16462
Decision Date26 June 2002

FLUOR DANIEL, Petitioner ,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, ELAINE L. CHAO, Secretary of Labor, Respondents.

No. 01-16462

UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

June 26, 2002

Petition for Review of an Order of the Occupational Safety and Health Review Commission, OSHRC Docket No. 96-01729

Before BIRCH, MARCUS and CUDAHY(FN1), Circuit Judges.

MARCUS, Circuit Judge:

Petitioner Fluor Daniel, an engineering and construction company, appeals an Occupational Safety and Health Review Commission ("OSHRC" or "the 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.

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 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).(FN2) 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 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 willfullyviolated 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.(FN3) In upholding the respiratory protection count, the OSHRC specifically rejected Fluor Daniel's 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...

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