Secretary of Labor v. Trinity Industries, Inc., No. 06-2121.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBarry
PartiesSECRETARY OF LABOR, Petitioner v. TRINITY INDUSTRIES, INC., Occupational Safety & Health Review Commission, Respondents. Secretary of Labor v. Trinity Industries, Inc.; Occupational Safety & Health Review Commission. Trinity Industries, Inc., Petitioner.
Decision Date31 August 2007
Docket NumberNo. 06-2271.,No. 06-2121.
504 F.3d 397
SECRETARY OF LABOR, Petitioner
v.
TRINITY INDUSTRIES, INC., Occupational Safety & Health Review Commission, Respondents.
Secretary of Labor
v.
Trinity Industries, Inc.; Occupational Safety & Health Review Commission.

[504 F.3d 398]

Trinity Industries, Inc., Petitioner.
No. 06-2121.
No. 06-2271.
United States Court of Appeals, Third Circuit.
Argued: May 21, 2007.
Opinion Filed: August 31, 2007.

[504 F.3d 399]

Michelle Yau, Esq. (Argued), Michael P. Doyle, Esq., United States Department of Labor, Office of the Solicitor, Washington, D.C., for Petitioner/Cross Respondents.

Robert E. Rader, Jr., Esq. (Argued), Rader & Campbell, Dallas, TX, for Respondents/Cross Petitioners.

Before: BARRY, CHAGARES, and TASHIMA,* Circuit Judges.

OPINION OF THE COURT

BARRY, Circuit Judge.


At issue before the Court is the decision of an Administrative Law Judge ("ALJ") constituting a final order of the Occupational Safety and Health Review Commission ("OSHRC" or "Commission"), which upheld two violations of the OSH Act but reclassified them as "non-serious." The Secretary of Labor, in 06-2121, contends that the ALJ erred in this reclassification of the violations. Trinity Industries, in 06-2271, argues that the ALJ erred in affirming the violations at all. For the following reasons, we will grant the petition in 06-2121 and deny the petition in 06-2271.

I.

This action was tried on stipulated facts before the ALJ. In brief, in 1988, Trinity purchased a foundry, which had been constructed prior to 1981, in McKees Rocks, Pennsylvania. At that time, Trinity had work done on the pusher furnace, which required removing a brick wall and inner insulation blanket. Trinity believed that any asbestos that had been present was removed. Trinity also believed that any new insulation installed at that time would be asbestos-free. Given these beliefs, in 2005, Trinity, in preparing to have work done on the same pusher furnace, did not conduct tests to determine if asbestos was present. It hired a contractor, Pli-Brico, to complete the work on the furnace. After work commenced, a Trinity employee noticed that an insulation blanket which had been placed in a dumpster appeared to contain asbestos. Work stopped and testing revealed that the insulation contained 5% amosite asbestos, which was later confirmed by tests conducted by the Occupational Safety and Health Administration ("OSHA").

OSHA issued a citation to Trinity alleging violations of 29 C.F.R. § 1926.1101(k)(2)(i), for failure to "determine the presence, location, and quantity of asbestos-containing material and/or presumed asbestos-containing material at the

504 F.3d 400

work site," and 29 C.F.R. § 1926.1101(k)(2)(ii)(A), for failure to "notify prospective employers bidding for work whose employees reasonably can be expected to be exposed to areas containing asbestos containing material (ACM) or presumed asbestos containing material (PACM)." (A.R.48-49.) It characterized these violations as "serious."

The ALJ found that the cited asbestos standard, which applies to "[c]onstruction, alteration, repair, maintenance, or renovation of structures, substrates, or portions thereof, that contain asbestos," 29 C.F.R. § 1926.1101(a)(3), applies in this situation. As the stipulated facts established that Trinity did not test for asbestos and did not notify PliBrico of its presence, the ALJ ruled that Trinity violated both sections of the regulation for which it was cited. The ALJ, however, reclassified the violations as "other" or "non-serious," because, according to the ALJ, the violations could not be deemed "serious" pursuant to 29 U.S.C. § 666(k) as the Secretary had not met her burden of showing "any significant exposure to asbestos." (A.R.20.) The ALJ vacated the proposed $2000 penalty.

Both parties appealed. The OSHRC did not direct the case for review. As such, the decision of the ALJ is deemed the final order of the OSHRC. See 29 U.S.C. § 661(j). We have jurisdiction pursuant to 29 U.S.C. § 660.

II.

Pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), this Court may set aside the legal conclusions of the ALJ if they are "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." See Bianchi Trison Corp. v. Chao, 409 F.3d 196, 204 (3d Cir.2005). The Court "must defer to an agency's reasonable interpretation of an ambiguous administrative statute." Reich v. D.M. Sabia Co., 90 F.3d 854, 856 (3d Cir.1996); see also Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-46, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In those instances in which the Secretary of Labor's interpretation differs from the interpretation of the OSHRC, the Court must defer to the Secretary's reasonable interpretation. Reich, 90 F.3d at 859-60; see also Martin v. OSHRC, 499 U.S. 144, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991).

OSHA cited Trinity for two violations of the OSH Act. The regulation at issue, 29 C.F.R. § 1926.1101, applies, in part, to construction and maintenance involving asbestos. Id. § 1926.1101(a)(3). The regulation requires building owners1 to test for asbestos at the worksite and communicate the results of those tests to employees and prospective employers bidding for work. The testing, id. § 1926.1101(k)(2)(i), and notification, id. § 1926.1101(k)(2)(ii), provisions are those at issue in this case. Pursuant to the regulation, the thermal system insulation and surfacing materials of buildings constructed prior to 1981 are presumed to contain asbestos and are deemed "presumed asbestos containing material" ("PACM"). Id. § 1926.1101(b). Tests done in accordance with the regulation can be used by the building owner to rebut the presumption that such materials actually contain asbestos. Id. § 1926.1101(k)(5).

The first issue to be addressed is the ALJ's reclassification of Trinity's violations

504 F.3d 401

as "non-serious." Pursuant to 29 U.S.C. § 666(k), "a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." The ALJ ruled that the Secretary had failed to meet her burden of showing that a serious violation had occurred because "there is no evidence to show any significant exposure to asbestos." (A.R.20). Trinity agrees, arguing that the Secretary "must present evidence either that there is a substantial probability that serious disease or death could result from this isolated one-time exposure, or that overexposure to asbestos was typical of the employee's job." Trinity Br. at 12. We disagree.

It is well-settled that, pursuant to § 666(k), "when the violation of a regulation makes the occurrence of an accident with a substantial probability of death or serious physical harm possible, the employer has committed a serious violation of the regulation." Bethlehem Steel Corp. v. OSHRC, 607 F.2d 1069, 1073 (3d Cir.1979) (emphasis added). The "substantial probability" portion of the statute "refers not to the probability that an accident will occur but to the probability that, an accident having occurred, death or serious injury could result," Ill. Power Co. v. OSHRC, 632 F.2d 25, 28 (7th Cir.1980), even in those cases in which an accident has not occurred or, in fact, is not likely to occur, Cal. Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986, 987 (9th Cir.1975); see also Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir.1984); Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127, 131-32 (6th Cir.1978).

Trinity violated the statute by failing to test for asbestos and notify Pli-Brico of the results. Given this failure, Pli-Brico and its employees could not adequately prepare for the job or arrange for protection to guard against the threat of asbestos exposure. This is the failure which forms the basis for the violations, and not the subsequent exposure suffered by Pli-Brico's employees. As such, the question is whether, as a result of the failure to test and notify, it was possible that an accident could occur in which it was substantially probable that death...

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12 practice notes
  • U.S. v. Atlantic States Cast Iron Pipe Co., Criminal No. 03-852(MLC).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 23, 2009
    ...reviewing the numerous issues that arise on appeal under the civil regulatory scheme. See, e.g., Sec'y of Labor v. Trinity Indus., Inc., 504 F.3d 397, 399-403 (3d Cir.2007) (reviewing ALJ findings, inter alia, that violations were "nonserious" and whether employees of on-site contractor wer......
  • Solis v. Summit Contractors, Inc., No. 07-2191.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 26, 2009
    ...expansive definition of employer or employee and does not conflict with the Darden decision. See Sec'y of Labor v. Trinity Indus., Inc., 504 F.3d 397, 402 (3d Cir.2007) (holding that the multi-employer worksite policy did not violate Summit also argues that the Secretary has no legal author......
  • Global Tower, LLC v. Hamilton Twp., Civil Action No. 3:CV–10–1705.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • September 14, 2012
    ...denied. Furthermore, Defendants will be ordered to grant Global's Application and issue all necessary permits and variances. See Ogden, 504 F.3d at 397 (“the district court's order of March 30, 2006, ordering the Township to issue all required zoning permits and variances, and the order of ......
  • Seiler v. Hollida Ysburg America Legion Ambulance Serv. Inc., CIVIL ACTION NO. 3:10-41
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • September 8, 2011
    ...been laid off.As a general matter, courts defer to an agency's interpretation of an ambiguous statute. Sec'y of Labor v. Trinity Indus., 504 F.3d 397, 400 (3d Cir. 2007) (quoting Reich v. P.M. Sabia Co.. 90 F.3d 854, 856 (3d Cir. 1996)). Courts of Appeals in other circuits have relied upon ......
  • Request a trial to view additional results
12 cases
  • U.S. v. Atlantic States Cast Iron Pipe Co., Criminal No. 03-852(MLC).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 23, 2009
    ...reviewing the numerous issues that arise on appeal under the civil regulatory scheme. See, e.g., Sec'y of Labor v. Trinity Indus., Inc., 504 F.3d 397, 399-403 (3d Cir.2007) (reviewing ALJ findings, inter alia, that violations were "nonserious" and whether employees of on-site contractor wer......
  • Solis v. Summit Contractors, Inc., No. 07-2191.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 26, 2009
    ...expansive definition of employer or employee and does not conflict with the Darden decision. See Sec'y of Labor v. Trinity Indus., Inc., 504 F.3d 397, 402 (3d Cir.2007) (holding that the multi-employer worksite policy did not violate Summit also argues that the Secretary has no legal author......
  • Global Tower, LLC v. Hamilton Twp., Civil Action No. 3:CV–10–1705.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • September 14, 2012
    ...denied. Furthermore, Defendants will be ordered to grant Global's Application and issue all necessary permits and variances. See Ogden, 504 F.3d at 397 (“the district court's order of March 30, 2006, ordering the Township to issue all required zoning permits and variances, and the order of ......
  • Seiler v. Hollida Ysburg America Legion Ambulance Serv. Inc., CIVIL ACTION NO. 3:10-41
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • September 8, 2011
    ...been laid off.As a general matter, courts defer to an agency's interpretation of an ambiguous statute. Sec'y of Labor v. Trinity Indus., 504 F.3d 397, 400 (3d Cir. 2007) (quoting Reich v. P.M. Sabia Co.. 90 F.3d 854, 856 (3d Cir. 1996)). Courts of Appeals in other circuits have relied upon ......
  • Request a trial to view additional results

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