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No. 07-198

 

In the Supreme Court of the United States

EMCON/OWT, INC., PETITIONER

v.

ELAINE L. CHAO, SECRETARY OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

JONATHAN L. SNARE
Acting Solicitor of Labor
JOSEPH M. WOODWARD
Associate Solicitor
MICHAEL P. DOYLE
Counsel for Appellate
Litigation
EDWARD D. SIEGER
JONATHAN R. HAMMER
Attorneys
Department of Labor
Washington, D.C. 20210

QUESTION PRESENTED

Whether the court of appeals correctly affirmed a decision by an administrative law judge under the Oc cupational Safety and Health Act, 29 U.S.C. 651 et seq., in light of the substantial evidence standard of review applicable to an agency's findings of fact and the arbi trary and capricious standard otherwise applicable to an agency's determinations.

In the Supreme Court of the United States

No. 07-198

EMCON/OWT, INC., PETITIONER

v.

ELAINE L. CHAO, SECRETARY OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a- 3a) is not published in the Federal Reporter but is reprinted in 224 Fed. Appx. 875. The decision and order of the administrative law judge (ALJ) of the Occupational Safety and Health Review Commission (Pet. App. 4a- 22a) is reported at 21 O.S.H. Cas. (BNA) 1498.

JURISDICTION

The judgment of the court of appeals was entered on March 13, 2007. A petition for rehearing was denied on May 14, 2007 (Pet. App. 23a-24a). The petition for a writ of certiorari was filed on August 13, 2007 (Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., requires a covered employer to furnish to each of his employees a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to the em ployees, and to comply with occupational safety and health standards promulgated by the Secretary of Labor (Secretary). 29 U.S.C. 654(a); see 29 U.S.C. 655 (Secre tary's authority to promulgate standards). Among the Secretary's standards is a requirement that employers engaged in excavation or trenching work perform daily inspections of excavations for evidence of a situation that "could result in [among other things] * * * haz ardous atmospheres[] or other hazardous conditions." 29 C.F.R. 1926.651(k)(1).

The standard provides that a "competent person" must inspect the excavation "prior to the start of work and as needed throughout the shift." 29 C.F.R. 1926.651(k)(1). In particular, such an inspection is re quired after every "hazard increasing occurrence * * * when employee exposure can be reasonably antici pated." Ibid. Where the competent person finds evi dence of a hazardous atmosphere or other hazardous conditions, exposed employees must "be removed from the hazardous area until the necessary precautions have been taken to ensure their safety." 29 C.F.R. 1926.651(k)(2).

A "competent person" is "one who is capable of iden tifying existing and predictable hazards in the surround ings, or working conditions which are * * * hazardous * * * to employees, and who has authorization to take prompt corrective measures to eliminate them." 29 C.F.R. 1926.650(b).

2. Petitioner performs services involving the con struction and maintenance of landfills. It was responsi ble for installing leachate collection systems and ex panding gas extraction systems in the Okeechobee Landfill in Florida. Pet. App. 6a. Leachate is rainwater that leaches through garbage in the landfill and is col lected in pipes in the landfill and then removed from the landfill for treatment. Id. at 7a; see Pet. 4. Gas extrac tion involves the removal of methane, an odorless gas produced by the deterioration of garbage in the landfill. Pet. App. 6a-7a.

In early 2004, petitioner had replaced a gas collection line and connected (tied in) new gas collection systems to leachate clean-out lines. Pet. App. 6a. On February 19, 2004, five of petitioner's employees were set to do the final tie-in for the gas collection system. Id. at 7a. The work involved cutting into a leachate clean-out pipe in an excavated trench. Ibid.

The work crew's supervisor (Meier) inspected the work site, then left to pick up supplies. See Pet. App. 7a, 17a. An acting foreman (Diloreti) was left in charge. Id. at 7a. While the acting foreman was in charge, one of the workers (Seaborn) cut into the pipe with a gas-pow ered chainsaw. Id. at 7a-8a. The pipe released an odor ous gas, and the chainsaw stopped working. Id. at 8a. Seaborn then left to get an electric saw. Ibid.

About 15 to 20 minutes later, Seaborn returned with the electric saw, entered the excavation, and immedi ately exited the excavation, remarking on a foul odor. Pet. App. 8a. Diloreti then entered the excavation but also immediately exited, commenting on the bad odor. Ibid. Another employee (Warne) then entered the exca vation, leaned over to cut the pipe, and immediately stood back up and said "Whew." Ibid. Finally, the re maining crew member (Garno) entered the excavation and leaned down to cut the pipe, stood back up, and said, "Something is not right." Ibid. He then passed out. Seaborn went to help Garno, and Diloreti noticed that Warne's legs were buckling. Diloreti went to pull Warne out of the trench, but passed out as he was doing so. Ibid. The employees were pulled from the excavation by other people working nearby and taken to a hospital for treatment. Ibid. Warne died either in transit or at the hospital. Id. at 1a-2a, 8a.

3. Following an investigation, the Secretary cited petitioner for violating the requirement in 29 C.F.R. 1926.651(k)(1) that a competent person inspect an exca vation after a hazard-increasing occurrence if employee exposure can be reasonably anticipated. Pet. App. 15a- 16a; see 29 U.S.C. 658.1 The Secretary also alleged that the violation was "serious." Under 29 U.S.C. 666(k), a "serious violation" is deemed to exist if "there is a sub stantial probability that death or serious physical harm could result" from a condition or practice at issue "un less the employer did not, and could not with the exer cise of reasonable diligence, know of the presence of the violation." Ibid.

a. The ALJ affirmed the citation. Pet. App. 15a-22a. The ALJ reasoned that "[t]he hazard increasing occur rence in this instance was the cut made in the leachate pipe." Id. at 18a. The ALJ found that "[r]easonable anticipation of employee exposure was raised by three incidents over a span of approximately 20 minutes: the gas chain-saw stopped, indicating a lack of oxygen in the atmosphere; a strong, unpleasant odor arose from the leachate pipe; and each crew member suffered immedi ate physical discomfort upon entering the excavation to make the second cut. These incidents were, all the wit nesses agreed, unusual in their experience." Ibid. Un der 29 C.F.R. 1926.651(k)(1), an inspection was there fore required. The ALJ further found that no inspection was made, even though the "reasonable action" for the acting foreman to have taken was to test the atmosphere with a gas meter he knew was in a truck. Pet. App. 18a.

The ALJ also determined that the violation was seri ous and that petitioner had constructive knowledge of the violation because it could have known of it with the exercise of reasonable diligence. Pet. App. 20a-21a. The ALJ found that petitioner was not reasonably diligent in training its employees, especially employees who took on supervisory roles, to recognize potential hazards and to take steps to prevent employee exposure to a hazardous atmosphere. Id. at 21a. The ALJ also imputed the act ing foreman's actual knowledge of the hazardous condi tions to petitioner. Ibid. The ALJ then assessed a pen alty of $6300. Id. at 21a-22a.

b. The ALJ's decision became final when the Occu pational Safety and Health Review Commission (Com mission) denied petitioner's request for discretionary review. See 29 U.S.C. 661(j).

c. The court of appeals affirmed the ALJ's decision. Pet. App. 1a-3a. The court reasoned that Commission decisions "are entitled to considerable deference on ap pellate review." Under 29 U.S.C. 660(a), the Commis sion's findings on questions of fact are conclusive if sup ported by substantial evidence; and 5 U.S.C. 706(2)(A) provides that an agency's decision otherwise can be overturned only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Pet. App. 2a-3a. The court of appeals stated that this was a "close case," but "given the deference which must be ac corded the Commission's decision," the decision should be affirmed. Id. at 3a.

ARGUMENT

The unpublished per curiam decision of the court of appeals is correct and does not conflict with any decision of this Court or any other court of appeals. Further re view is unwarranted.

1. Petitioner first argues that the court of appeals' decision is in conflict with decisions of other circuits on the standard of review governing the Commission's de termination that the employees' exposure could be "rea sonably anticipated," 29 C.F.R. 1926.651(k)(1), and that petitioner did not exercise "reasonable diligence," 29 U.S.C. 666(k). Pet. 13-15. In fact, there is no conflict among the circuits on this issue.

Several of the cases cited by petitioner stand for the general proposition that agency determinations on mixed questions of fact and law are subject to substan tial evidence review when factual questions predomi nate, 29 U.S.C. 660(a), and to review under the standard of 5 U.S.C. 706(2)(A) when legal questions predominate.2 See Atlantic & Gulf Stevedores v. OSHRC, 534 F.2d 541, 547 (3d Cir. 1976) (applying the Section 706(2)(A) stan dard to a predominantly legal question); Electric Smith, Inc. v. Secretary of Labor, 666 F.2d 1267, 1271 (9th Cir. 1982) (applying the Section 706(2)(A) standard in case where "factual findings are of limited importance * * * as compared with the conclusions of law to be drawn from them"); Puerto Rico Aqueduct & Sewer Auth. v. United States EPA, 35 F.3d 600, 604 (1st Cir. 1994) (re view under Section 706(2)(A) not applied to "[m]ixed questions of law and fact * * * that * * * are fact- dominated"), cert. denied, 513 U.S. 1148 (1995).

The only three cases cited by petitioner that deal specifically with the "reasonable diligence" standard in Section 666(k) all treat an employer's actual or construc tive knowledge of a violation as a question of fact subject to substantial evidence review. See Atlas Roofing Co. v. OSHRC, 518 F.2d 990, 1013 (5th Cir. 1975) (whether employer exercised "reasonable diligence" is "[e]ssentially * * * a question of fact"), aff'd on other grounds, 430 U.S. 442 (1977); Dunlop v. Rockwell Int'l, 540 F.2d 1283, 1288 (6th Cir. 1976) (same); Martin v. OSHRC, 947 F.2d 1483, 1485 (11th Cir. 1991) (same). The same is true in the First and Third Circuits. See Pennsylvania Power & Light Co. v. OSHRC, 737 F.2d 350, 358 (3d Cir. 1984) (applying substantial evidence standard); Donovan v. General Motors Corp., 764 F.2d 32, 35 (1st Cir. 1985) (whether employer had construc tive knowledge of hazards is a question of fact reviewed for substantial evidence). Petitioner cites no case to the contrary. Nor does petitioner cite any case dealing spe cifically with the "reasonable anticipation" standard un der 29 C.F.R. 1926.651(k)(1).

Moreover, even if there were a circuit split, this case would not be an appropriate vehicle to resolve it, for three reasons. First, the court of appeals was not asked to decide which standard of review should apply to the ALJ's determinations that employee exposure could be "reasonably anticipated" and that petitioner had con structive knowledge. Instead, petitioner's brief in the court of appeals merely recited the familiar rule that findings of fact are subject to substantial evidence re view, and conclusions of law are subject to review under Section 706(2)(A). Pet. C.A. Br. 16-17. This Court should not consider issues that "are neither raised be fore nor considered by the Court of Appeals." Pennsyl vania Dep't of Corr. v. Yeskey, 524 U.S. 206, 212-213 (1998) (citations omitted).

Second, the court of appeals did not clearly identify what standard of review it used. It too simply recited the rule that questions of fact are reviewed for substan tial evidence and that legal determinations are reviewed under the standard of Section 706(2)(A). Pet. App. 2a- 3a. It then concluded that the ALJ's decision must be upheld "given the deference which must be accorded" to it. Id. at 3a. Petitioner asserts that the court of appeals "presumably" reviewed the ALJ's determinations on the issues of reasonableness in this case as pure questions of fact, Pet. 13, but the court may well have reviewed them as mixed questions of fact and law.

Finally, petitioner nowhere explains why the label affixed to the court of appeals' review would make any difference in this case. Both the substantial evidence standard and the standard of Section 706(2)(A) are highly deferential to the agency. See Consolidated Edi son Co. v. NLRB, 305 U.S. 197, 229 (1938) ("[s]ubstantial evidence * * * means such relevant evidence as a rea sonable mind might accept as adequate to support a con clusion"); USPS v. Gregory, 534 U.S. 1, 6-7 (2001) (de scribing "arbitrary and capricious" review as "extremely narrow"). The court of appeals here rested upon the deference owed to the Commission in upholding the ALJ's decision. Pet. App. 3a. Whether this deference was owed under the rubric of substantial evidence or under the banner of Section 706(2)(A) is, in this case, a distinction without a difference.

2. Petitioner also argues that the ALJ misinter preted 29 C.F.R. 1926.651(k)(1) to require that a compe tent person be on-site continuously, contrary to the Sec retary's interpretation of that standard. Pet. 15-20. This is incorrect.

The ALJ expressly acknowledged that "the standard does not require a competent person's constant pre- sence on site." Pet. App. 18a. However, the ALJ cor rectly stated that the regulation requires an inspec- tion "as needed throughout the shift," such as after a "hazard increasing occurrence * * * when employee exposure can be reasonably anticipated." 29 C.F.R. 1926.651(k)(1); Pet. App. 15a n.3, 18a. Here, the ALJ reasoned, the cut made into the leachate pipe was a haz ard increasing occurrence, and employee exposure to a hazardous atmosphere could be reasonably anticipated due to "three incidents over a span of approximately 20 minutes: the gas chain-saw stopped, indicating a lack of oxygen in the atmosphere; a strong, unpleasant odor arose from the leachate pipe; and each crew member suffered immediate physical discomfort upon entering the excavation to make the second cut." Id. at 18a. At that point, an inspection by a competent person was re quired to ensure that conditions were safe or to take corrective action to prevent employee exposure to a haz ardous atmosphere. If the competent person was not on site, as petitioner claims, work should have stopped until he returned.

3. Finally, petitioner disputes the ALJ's determina tions that an atmospheric hazard could reasonably have been anticipated and that petitioner had constructive knowledge of the hazard. Pet. 15-25. Those are fact- bound questions that do not merit this Court's review. See Sup. Ct. R. 10 ("A petition for a writ of certiorari is rarely granted when the asserted error consists of erro neous factual findings or the misapplication of a prop erly stated rule of law."); United States v. Johnston, 268 U.S. 220, 227 (1925) ("We do not grant a certiorari to review evidence and discuss specific facts.").

Moreover, the ALJ's determinations were correct. The ALJ reasonably determined that the toxic atmo sphere could reasonably have been anticipated based on a series of events that the workers characterized as "un usual in their experience" (Pet. App. 18a): the release of an odorous gas; the sudden stoppage of the chain saw after cutting the pipe, indicating a lack of oxygen; and the physical discomfort experienced by workers in their repeated aborted attempts to enter the excavation and continue work. Id. at 7a-8a, 18a. Petitioner simply pre fers the testimony of its supervisor, who was absent from the work site when the hazardous atmosphere de veloped. Pet. 21.

The ALJ also correctly determined that petitioner could have known of the hazard through the acting fore man had it been reasonably diligent in training its em ployees, especially those who took on supervisory roles, to identify recognizable hazards and to take steps to prevent employee exposure while awaiting inspection by a competent person. Pet. App. 20a-21a. The ALJ's deci sion does not amount to a requirement that a competent person be present at all times; rather, the ALJ's deci sion requires only that employees in supervisory roles receive training sufficient for them to be able to recog nize when an inspection by a competent person is "needed [during] the shift," 29 C.F.R. 1926.651(k)(1), due to a hazard increasing occurrence. Absent such training, the "as needed" inspections required by the standard would not take place unless the competent per son happened to be on site when hazardous conditions developed.

Petitioner's claim that the acting foreman was not aware of any potential hazard until "seconds" before he passed out (Pet. 24), and therefore could not have taken any corrective action, is not supported by the evidence. The acting foreman had seen the chainsaw stop, was present when one worker exited the trench because of the bad odor, and exited the trench himself because of the bad odor. Pet. App. 8a. If he had been properly trained, he would have recognized the presence of a haz ardous atmosphere and would have prevented other workers from entering the trench until a competent per son could conduct an inspection.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

 

PAUL D. CLEMENT

Solicitor General

JONATHAN L. SNARE
Acting Solicitor of Labor
JOSEPH M. WOODWARD
Associate Solicitor
MICHAEL P. DOYLE
Counsel for Appellate
Litigation
EDWARD D. SIEGER
JONATHAN R. HAMMER
Attorneys
Department of Labor

 

OCTOBER 2007

 

 

1 The Secretary also cited petitioner under 29 C.F.R. 1926.651(g)(1)(ii) and (iv) for failing to take certain steps to protect employees from a hazardous atmosphere. See Pet. App. 10a-12a. The ALJ vacated those citations, id. at 12a-15a, and they are no longer at issue here.

2 Section 706(2)(A) provides that a reviewing court shall set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 706(2)(A).