Appendix — EMCON/OWT, Inc. v. Chao (No. 07-198)

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

DATED AND FILED MARCH 13, 2007

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 06-11719

EMCON/OWT, INC.,

Petitioner,

versus

SECRETARY OF LABOR, THE OCCUPATIONAL

SAFETY AND HEALTH REVIEW COMMISSION,

Respondents.

March 13, 2007

Before DUBINA and WILSON, Circuit Judges, and

CORRIGAN,* District Judge.

PER CURIAM:

On February 15, 2004, one worker died and three others

were injured at the Okeechobee Landfill in Okeechobee, Florida.

These workers were employees of the Petitioner, EMCON/

OWT, Inc., which was cited for a “serious” OSHA violation as

* Honorable Timothy J. Corrigan, United Sates District Judge

for the Middle District of Florida, sitting by designation.

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Appendix A

a result of this accident. An Administrative Law Judge conducted

a full hearing on the citation and affirmed one of the citation

items (Item 3), 29 C.F.R. § 1926.651(k)(1), and assessed a

penalty of $6,300.00. The ALJ’s decision became the final

decision of the Occupational Safety and Health Review

Commission (OSHRC). Petitioner seeks review of that decision

in this Court. 29 U.S.C. §§ 659(c), 660(a) and 661(j).

“To prove a violation of an OSHA standard, the Secretary

[of Labor] must show by a preponderance of the evidence that

(1) the cited standard applies, (2) there was noncompliance with

its terms, (3) employees had access to the violative conditions,

and (4) the cited employer had actual or constructive knowledge

of those conditions.” Secretary of Labor v. Southwestern Bell

Tele. Co., 19 BNA OSHC 1097, 1098, 2000 WL 1424806

(OSHRC No. 98-1748, 2000).

The Commission’s decisions are entitled to considerable

deference on appellate review. The Occupational Safety and

Health Act itself provides “(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). “Substantial evidence is more

than a scintilla and is such relevant evidence as a reasonable

person would accept as adequate to support a conclusion.” Fluor

Daniel v. Occupational Safety and Health Review Comm'n,295

F.3d 1232, 1236 (11th Cir.2002) (citations omitted). “We are

mindful that we do not review the record to draw our own

conclusions that we then measure against an administrative

agency; rather, we must consider a// of the evidence when

drawing our conclusions about the reasonableness of an agency’s

findings of fact.” Schering-Plough Corp. v. F.T.C., 402 F.3d

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Appendix A

1056, 1063 (11th Cir.2005) (emphasis added). “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 law.”

Fluor Daniel, 295 F.3d at 1236; 5 U.S.C. § 706(2)(a).

After considering the briefs and hearing record and

conducting oral argument, we find this to be a close case.

However, given the deference which must be accorded the

Commission’s decision, we will not disturb it.

AFFIRMED.

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APPENDIX B — DECISION AND ORDER OF THE

UNITED STATES OF AMERICA OCCUPATIONAL

SAFETY AND HEALTH REVIEW COMMISSION

DOCKETED DECEMBER 15, 2005

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW

COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, SW

Atlanta, Georgia 30303-3104

OSHRC Docket No. 04-1406

Secretary of Labor,

Complainant,

EMCON/OWT, Inc.,

Respondent.

Before: Administrative Law Judge Nancy J. Spies

DECISION AND ORDER

EMCON/OWT, Inc., contests a citation issued by the

Secretary on July 30, 2004. The citation resulted from an

inspection conducted by Occupational Safety and Health

Administration (OSHA) compliance officer Robert

Chadwick. Chadwick inspected EMCON’s worksite at the

Okeechobee Landfill in Okeechobee, Florida, following a

fatal accident there. On February 19, 2004, a crew of four

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Appendix B

EMCON employees cut into a leachate clean-out pipe, which

released an odorous gas. Two of the crew members passed

out and a third, Kenny Warne, died from asphyxiation.

The Secretary charges EMCON with violating

three sections of the § 1926.651 excavation

standard: § 1926.651(g)(1)(ii), § 1926.651(g)(1)(iv), and

§ 1926.651(k)(1), items1, 2, and 3 respectively.

EMCON contends the Secretary failed to establish each

of the cited items. The undersigned heard the case on

February 16 and 17, 2005, in Fort St. Lucie, Florida. The

parties submitted post-hearing briefs.

For the reasons discussed below ENICON was not in

violation of §§ 1926.651(g)(1)(ii) and (iv). Items | and 2 are

vacated. EMCON was in violation of § 1926.651(k)(1).

Item 3 is affirmed

Issues

The issues are:

(1) Item I1— Did EMCON violate § 1926.65 1(g)(1)(ii)

by failing to take adequate precautions to prevent employee

exposure to atmospheres containing less than 19.5 percent

oxygen?

(2) Item 2— Did EMCON violate § 1926.65 1(g)(1)(iv)

by failing to conduct testing as often as necessary to ensure

the atmosphere was safe when controls intended to reduce

the level of atmospheric contaminants were used?

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Appendix B

(3) Item 3—Did EMCON violate § 1926.651(k)(1). by

failing to have a competent person inspect the excavation

for evidence of a situation that could result in a hazardous

atmosphere?

Factual Background

EMCON constructs landfills and installs gas collection

systems and leachate management systems. Okeechobee

Landfill for Waste Management, Inc. (Waste Management),

hired EMCON to expand its existing landfill gas extraction

system. The Okeechobee Landfill is perhaps the second

largest landfill in the United States. It has a capacity of

145,000,000 cubic yards of space and a site life of

approximately 80 years. Landfill users may dump 10,000 to

12.000 tons of garbage a day at Okeechobee.

Landfill contractors lay landfills out in cells. They line

the cells with high density polyethylene (HDPE). The

Okeechobee Landfill’s natural ground level is approximately

50 feet above sea level. Its permit allows the garbage to be

filled to 227 feet above sea level. Users of the landfill deposit

the garbage in layers. Contractors must install active gas

collection systems as the cells fill up close to the grade or to

their permitted height.

In early 2004, EMCON had replaced a header line to the

gas collection facility and tied in new gas wells with drip

legs and condensate lines back to clean-out lines on the cell.

Header lines are larger the closer they are to the methane gas

flare and smaller the farthest from the gas flare. These header

lines act as vacuum lines for the landfill to the gas main. As

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Appendix B

the garbage in the landfill cells deteriorates, it generates

methane, an odorless gas. The header lines are necessary to

pull the methane gas produced by the deterioration of the

garbage in the landfill cells.

Lighter than breathable air, methane gas rises over time.

Wells located around the landfill vacuum the methane into

gas headers to a central location where it is burned off.

Leachate is rainwater leached through the active garbage

area. Leachate clean-out lines drain leachate to the landfill’s

sump area. Landfill contractors install the leachate clean-

out lines through the middle of each cell prior to any garbage

being deposited. Gravel and a layer of sand 2 feet deep cover

the clean-out pipes so that garbage does not come in contact

with the pipes, The leachate percolates through the sand and

gravel into the collecting lines. There are approximately 1,400

feet of leachate clean-out lines, designed with a 2 percent

fall, throughout the landfill. The pipes are perforated in active

waste areas so leachate can drain into them.

On February 19, 2004, EMCON’s work crew was

scheduled to do the final tie-in for the gas extraction system.

The crew members were supervisor Johnny Meier, foreman

Troy Diloreti, and laborers or field techs Billy Seaborn, Dana

Garno, and Kenny Warne. The previous day the crew

members had excavated a trench, exposing the leachate clean-

Out pipe into which they needed to cut. The trench was less

than 4 feet in depth.

Meier left the site to get gas and supplies, leaving Troy

Diloreti as acting foreman. Seaborn, using a gasoline-

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Appendix B

powered chainsaw, cut into the pipe. The pipe released an

odorous gas and the chainsaw stopped working. Seaborn

exited the trench and went to the job trailer to retrieve a Saws-

All electric saw. He was gone for 15 to 20 minutes. When he

returned, he re-entered the trench. Instead of cutting into the

pipe, Seaborn commented on the foul odor and again exited

the trench. Diloreti then entered the trench prepared to make

the cut, but he too stopped short and commented on the odor.

Warne expressed impatience with his co-workers and entered

the trench. He bent downto cut into the pipe, but immediately

stood up and said, “Whew.” (Tr. 77). Gamo jumped into the

trench, bent over the pipe, stood up, and said, “Something is

not right.” He then passed out (Tr. 77). Seaborn went to help

Garno out of the trench. Diloreti looked at Warne and saw

he was bleary-eyed and his legs were buckling. Diloreti went

over to pull Warne out of the trench but passed out as he was

doing so.

A Waste Management operations manager radioed Waste

Management district manager Matthew Orr and informed him

men were down on the south side of cells 17 and 18. When

Orr arrived at the site, he saw the four crew members. Two

of them, including Warne, were unconscious. Garno was

vomiting and Warne was foaming at the mouth. All were

transported to a hospital. Warne died either in transit or at

the hospital.

Dary! Lewis was a detective in charge of the crime scene

unit for the Okeechobee County Sheriff's Office at the time

of the accident. He photographed the site where the EMCON

crew was stricken. Dr. Charles Albert Diggs was the Associate

Medical Examiner for Okeechobee County. He performed

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Appendix B

an autopsy on Warne and concluded the cause of death was

asphyxiation due to “acute hydrocarbon (methane)

inhalation” (Exh. C-2). Compliance officer Chadwick arrived

at the Okeechobee landfill on February 20, the day after the

accident. He observed the site and took photographs. He

interviewed Waste Management personnel and the EMCON

employees. Based upon Chadwick’s investigation, the

Secretary issued the citation that gave rise to this proceeding.

Discussion

To prove a violation of an OSHA standard, the

Secretary must show by a preponderance of the

evidence that (1) the cited standard applies, (2)

there was noncompliance with its terms, (3)

employees had access to the violative conditions,

and (4) the cited employer had actual or

constructive knowledge of those conditions.

Southwestern Bell Telephone Co., 19 BNA OSHC 1097, 1098

(No. 98-1748, 2000).

The Secretary alleges any violations committed by

EMCON were serious. Under § 17(k) of the Act, a violation

is serious “if there is a substantial probability that death or

serious physical harm could result from” the violation.

[T]he Secretary need not establish that an accident

is likely to occur in order to prove that the

violation is serious. Rather [s]he must show that

“an accident is possible and there is a substantial

probability that death or serious physical harm

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Appendix B

,

could result from the accident.” Consolidated

Freightways Corp., 15 BNA OSHC 1317, 1324,

1991 CCH P29,500, p. 39,813 (No. 86-351,

1991)[.]

Flinteo, Inc., 16 BNA OSHC 1404, 1405 (No. 92-1396,

1993).

Items 1 and 2:

Alleged Serious Violations of §§ 1926.651(g)(1)(ii)

and (iv)

Item | alleges a violation of § 1926.651(g)(1)(ii).' The

Citation states:

For the work site located at the Okeechobee

Landfill, at the leachate clean out located at the

south end of cells #17 and #18. On 2/19/04 four

employees were inthe process of cutting into the

eight (8) inch High Density Polyethylene (HDPE)

leachate collection pipe that was located in an

excavation which was approximatel ythree (3) feet

deep. Adequate precautions were not taken ‘to

protect the employees from a hazardous methane

atmosphere which escaped from the cut in the

leachate pipe, and accumulated within the

1. The standard requires: Adequate precautions shall be taken

to prevent employee exposure to atmospheres containing less than

19.5 percent oxygen and other hazardous atmospheres. These

precautions include providing proper respiratory protection or

ventilation in accordance with subparts D and E of this part

respectively.

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Appendix B

excavation. The employees were overcome by the

hazardous methane atmosphere.

Item 2 alleges a violation of § 1926.651(g)(1)(iv).?

The citation states:

For the work site located at the Okeechobee

Landfill, at the leachate clean out located at the

south end of cells #17 and #18. On 2/19/04

employees were in the process of cutting into the

eight (8) inch High Density (HDPE) leachate

collection pipe that was located in an excavation

which was approximately three (3) feet deep. After

the initial cut was made into the leachate pipe, an

atmosphere developed in the excavation which

caused adverse effects to the employees. The

excavation was vacated for a period of time so

that the natural air movement at the work area

could air-out, or ventilate, the excavation.

Employees were allowed to go back into the

excavation without conducting any air sampling,

or exposure monitoring, to detect the presence of

the reasonably expected hazardous atmosphere

that may still be present in the excavation, or to

determine the actual level of the hazardous

atmosphere that may be present. As a result of

the failure to conduct the necessary air sampling,

or exposure monitoring, the employees working

2. The standard requires: When controls are used that are

intended to reduce the level of atmospheric contaminants to

acceptable levels, testing shall be conducted as often as necessary

to ensure that the atmosphere remains safe.

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Appendix B

in the excavation were overcome by a hazardous

methane atmosphere.

1. Application of Standards

Section 1926.651 is captioned “Specific excavation

requirements.” Section 1926.651(g) is captioned “Hazardous

atmospheres,” Section 1926.65 1(g)(1)(i) provides:

Where oxygen deficiency (atmospheres

containing less than 19.5 percent oxygen) or a

hazardous atmosphere exists or could reasonably

be expected to exist, such as in excavations in

landfill areas or excavations in areas where

hazardous substances are stored nearby, the

atmospheres in the excavation shall be tested

before employees enter excavations greater than

4 feet (1.22 in) in depth (emphasis added),

Immediately following this subparagraph are

§ 1926.651(g)(1)(ii), (ii), and (iv). EMCON argues

§§ 1926.651(g)(1)(1) through (g)(1)(iv) must be read as a

whole to properly understand the context. Under this

interpretation, subparagraphs (g)(1)(ii) through (g)(1)(iv)

apply only if the requirements of subparagraph (g)(1)(i) apply

to the cited conditions. Section 1926.65 1(g)(1)(i) applies only

to excavations greater than 4 feet in depth. EMCON argues

the three subparagraphs that follow also apply only to

excavations greater than 4 feet in depth. Estimates of the

depth of the excavation at issue vary, but none of them

exceeds 4 feet, nor does the Secretary contend the excavation

was deeper than 4 feet.

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Appendix B

The Secretary calls EMCON’s argument “strained

reasoning” (Secretary’s brief, p. 15) but does not otherwise

refute it.

Reading § 1926.651(g)(1) in its entirety supports

EMCON’s argument. Only certain excavations need to be

tested for hazardous atmospheres—those in landfill areas or

in areas where hazardous substances are stored nearby, for

example. Section 1926.65 1(g)({1)(i) requires testing forthese

excavations, where hazardous atmospheres could reasonably

be expected to exist, if they are greater than 4 feet in

depth. Section 1926.651(g)(1)(1i) requires the employer to

take adequate precautions “to prevent employee exposure to

atmospheres containing less than 19.5 percent oxygen

and other hazardous atmosphere.” Section 1926.65 1(g)(1)(iv)

requires the employer to conduct additional testing

when controls are used to reduce the level of

atmospheric contaminants. Unlike § 1926.651(g)(1)(i),

$§ 1926.651(g)(1)(ii) and (iv) do not refer to areas where a

hazardous atmosphere could reasonably be expected to exist;

they address areas where the hazardous atmosphere

apparently is known to exist. Section 1926.65 1(g)(1)(ii), thus,

presumes testing has already established the atmosphere is

hazardous. The ordering of the subparagraphs presents a

logical progression. If testing establishes a hazardous

atmosphere exists, then adequate precautions are required.

If testing establishes a hazardous atmosphere exists and

controls are used, then additional testing ts required.

The Secretary contends the subparagraphs can be read

in isolation. If her reading were correct, the employer would

first be required to conduct testing in order to determine

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Appendix B

whether it had to take the additional steps outlined in

subparagraphs (ii) through (iv). This interpretation renders

§ 1926.651(g)(1){i) meaningless. The alternative would be

to comply with the requirements of subparagraphs

(ti) through (iv) regardless of testing, an approach explicitly

rejected in the preamble to § 1926.651 (54 F. R. 45894, 45920

(1989)):

OSHA received six comments and input from

ACCSH [Advisory committee on Construction

Safety and Health] on this requirement. Two

commenters [Exs. 4-25 and 4-67] objected to the

requirement for testing the atmosphere, noting that

the gas industry normally tests for hazardous

atmospheres. Both commenters also contended

respiratory protection or ventilation should be

permitted in lieu of testing. OSHA notes that

respiratory protection or ventilation is required by

§ 1926.651(g)(1)(ii) of this final rule, and the

requirement for testing establishes what, if any,

precautions or additional precautions are

necessary. If an employer chooses to provide

adequate employee protection in accordance with

the appropriate regulations as a matter of

procedure, the failure to test would be de minimis.

According to the preamble, use of adequate precautions

required by § 1926.651(g)(1)(ii) is contingent upon the

establishment, by testing, of a hazardous atmosphere.

Because testing is not required in excavations less than 4

feet in depth, §§ 1926.651(g)(1)(ii) through (iv) do not apply

to excavations less than 4 feet in depth.

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Appendix B

The excavation at issue was less than 4 feet in depth.

Therefore, §§ 1926.651(g)(1)(ii) and (iv) do not apply to it.

Items | and 2 are vacated.

Item 3: Alleged Serious Violation of § 1926.651(k)(1)

Item 3 alleges a violation of § 1926.651(k)(1)°

For the work site located at the Okeechobee

Landfill, at the leachate clean out located at the

south end of cell #17 and #18. On 2/19/04

employees were in the process of cutting into the

eight (8) inch High Density Polyethylene (HDPE)

leachate collection pipe that was located in an

excavation which was approximately three (3) feet

deep. After the initial cut was made into the

leachate pipe, an atmosphere developed in the

excavation which caused adverse effects to the

employees. The excavation was vacated for a

period of time so that the natural air movement at

the work area could air-out, or ventilate, the

excavation. Ai this time a competent person did

3. The standard requires: Daily inspections of excavations, the

adjacent areas, and protective systems shall be made by a competent

person for evidence of a situation that could result in possible cave-

ins, indications of failure of protective systems, hazardous

atmospheres, or other hazardous conditions. An inspection shall be

conducted by the competent person prior to the start of work and as

needed throughout the shift. Inspections shall also be made after

every rainstorm or other hazard increasing occurrence. These

inspections are only required when employee exposure can be

reasonably anticipated.

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Appendix B

not stop the work in the excavation and conduct,

or arrange to have the appropriate person conduct,

air sampling to determine what hazardous

atmosphere may be present, and what levels of

that hazardous atmosphere were present. After the

air-out period it was assumed that it would be safe

to reenter the excavation and employees were

allowed to go back into the excavation without

conducting any air sampling, or exposure

monitoring, to detect the presence of the

reasonably expected hazardous atmosphere that

may still be present in the excavation. As the result

of a competent person’s failure to recognize the

possible hazardous working condition, and failure

to conduct the necessary air sampling, and failure

to initiate the appropriate corrective actions, the

employees that reentered the excavation were

overcome by a hazardous methane atmosphere.

Application of Standard

Although the excavation at issue was less than 4 feet in

depth, there is no question it was an excavation as defined

by § 1926.650(b): “[A]ny man-made cut, cavity, trench, or

depression in an earth surface, formed by earth removal.”

Section 1926.651(k)(1) applies to the excavation made to

expose the leachate pipe.

Noncompliance with Terms of Standard

The Secretary considers Diloreti to be EMCON’s

designated competent person on the site and argues he was

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Appendix B

not qualified. EMCON considers only supervisor Meier to

be its designated competent person. EMCON argues Meier

conducted an inspection of the excavation the morning of

February 19, 2004, before work, in compliance with

§ 1926.651(k)(1). The standard does not require the

competent person to remain on site for the entire workday.

At the time Meier left the site to get supplies, EMCON argues,

he had complied with § 1926.6510(k).

Section 1926.650(b) defines “competent person” as “one

who is capable of identifying existing and predictable hazards

in the surroundings, or working conditions which are

unsanitary, hazardous, or dangerous to employees, and who

has authorization to take prompt corrective measures to

eliminate them.” Neither the definition standard nor the cited

standard refers to the competent person as “designated.”

Thus, the formal designation assigned an employee is not as

significant as the employee’s qualifications and authority.

EMCON designated Meier, supervisor, as the competent

person, but it was Diloreti, »s acting foreman, who was in

the position of authority whea an inspection was required.

EMCON’s focus is on the first two sentences of the

standard, requiring an inspection prior to the start of work,

which Meier conducted. But the Secretary makes it clear in

the citation the alleged violation occurred when a competent

person failed to conduct an inspection of the excavation after

the crew cut into the leachate pipe. It is the last two, not the

first two, sentences of § 1926.651(k)(1) that are at issue:

Inspections shall also be made after every

rainstorm or other hazard increasing occurrence.

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Appendix B

These inspections are only required when

employee exposure can be reasonably anticipated.

The hazard increasing occurrence in this instance was

the cut made in the leachate pipe. The cut released some gas

(the Secretary speculates it was methane, but this was never

conclusively established) into the immediate atmosphere,

Causing irritation, and eventually asphyxiation, in the crew

members. Section 1926.651(k)(1) requires an inspection

“when employee exposure can be reasonably anticipated.”

Reasonable 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 immediate

physical discomfort upon entering the excavation to make

the second cut. These incidents were, all the witnesses agreed,

unusual in their experience. Diloreti knew there were gas

meters in the truck. Retrieving the Saws-All had already

delayed work on the leachate pipe. Testing the atmosphere

with a gas meter would have been the reasonable action to

take by Diloreti, as acting foreman.

EMCON cannot escape the requirements of the second

part of § 1926.651(k)(1) by claiming its competent person

was Off site after making the first required inspection. While

the standard does not require a competent person’s constant

presence on site, it does require a competent person to

conduct an inspection after a hazard increasing occurrence.

This was not done in the present case.

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Appendix B

Diloreti had worked for EMCON for ten and a half years

at the time of the hearing (Tr. 245). In the month and a half

EMCON had been on the Okeechobee site prior to Warne’s

death, Meier had designated Diloreti as acting foreman at

least once a week (Tr. 257-258). Diloreti testified he had

never received competent person training, he only vaguely

understood the term “competent person,” and it had never

occurred to him to test the excavation with a gas meter after

the crew cut the leachate pipe (Tr. 259-263).

Under Commission precedent, a person is found

to be competent when he makes an inspection in

a competent manner and makes a reasonable

determination that the condition is safe...

{E]xperience alone does not qualify the designated

employee as a “competent person.”

Superior Masonly Builders, 20 BNA OSHC 1182 (No. 96-

1043, 2005). Where inspections are insufficient to identify a

recognizable hazard, the employer is in noncompliance with

the requirement that inspections be conducted by a competent

person. DiGioia Brothers Excavating, 17 BNA OSHC 1181,

1184 (No. 92-3024, 1995).

Diloreti was not qualified to act as a competent person.

He was unable to identify a recognizable hazard when his

crew members showed signs of physical discomfort when

exposed to gas released by the leachate pipe. No competent

person conducted an inspection of the excavation following

the hazard increasing occurrence. EMCON failed to comply

with the terms of the standard.

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Appendix B

3. Employee Exposure

Four EMCON employees were exposed to the hazard

created when EMCON failed to have a competent person

conduct an inspection of the excavation following a hazard

increasing occurrence. Kenny Warne died from exposure to

the hazardous condition. The other three crew members

present were hospitalized. The Secretary has established

employee exposure to the hazardous condition.

4. Knowledge

The Secretary contends EMCON had constructive

knowledge of the violation of § 1926.651(k)(1). Constructive

knowledge is shown if the employer could have known of

the violative condition with the exercise of reasonable

diligence. Whether an employer was reasonably diligent

involves a consideration of several factors, including the

employer’s obiigation to have adequate work rules and

training programs, to adequately supervise employees, and

to take measures to prevent the occurrence of the violation.

Pride Oil Well Service, 15 BNA OSHC 1809 (No. 87-692,

1992).

Diloreti testified that, along with Meier, he considered

himself qualified as a competent person. When asked why,

Diloreti responded (Tr. 263):

I felt safe as far as, like, you know, my digging,

my benching, knowing if there was a problem or

whatnot. I mean, in the ten years that I had been

there, | went from a laborer to a technician to an

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Appendix B

operator to a foreman. I feel that I was competent

enough, you know, to succeed with my career.

Diloreti said nothing regarding hazardous atmospheres.

As noted, EMCON did not provide him with competent

person training. EMCON was not reasonably diligent in

training its employees, especially employees who took on

supervisory roles, to recognize potentially hazardous

Situations and to take steps to prevent employee exposure to

a hazardous atmosphere. Diloreti’s knowledge of the foul

smell and of his crew members’ reaction to it are imputed to

EMCON. Globe Contractors, Inc. v Hern, 132 F.3d 367, 373

(7" Cir. 1997).

The Secretary has established a serious violation of

§ 1926.651(k)(1).

PENALTY DETERMINATION

The Commission is the final arbiter of penalties in all

contested cases. In determining an appropriate penalty, the

Commission is required to consider the size of the employer’s

business, history of previous violations, the employer’s good

faith, and the gravity of the violation. Gravity is the principal

factor to be considered.

EMCON employs more than 250 employees (Tr. 150-

151). The company had no history of violations in the three

years prior to the inspection at issue (Tr. 151). EMCON

demonstrated good faith throughout the proceedings.

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Appendix B

The gravity of the violation is high. Failure to comply

with § 1926.65 1(k) and to test the atmosphere in this instance

likely contributed to the death of an employee.

It is determined the appropriate penalty for this item is

$6,300.00.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact

and conclusions of law in accordance with Rule 52(a) of the

Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing decision, it is ORDERED that:

1. Item | of the citation, alleging a violation of

§ 1926.651(g)(1)(i1), is vacated and no penalty is

assessed;

Item 2 of the citation, alleging a violation of

§ 1926.651(g)(1)(iv), is vacated and no penalty is

assessed; and

Item 3 of the citation, alleging a violation of

§ 1926,651(k)(1), is affirmed, and a penalty of

$6,300.00 is assessed.

/S/ NANCY J. SPIES

NANCY J. SPIES

Judge

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APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT DENYING PETITION FOR REHEARING

FILED MAY 14, 2007

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 06-11719-DD

EMCON/OWT, INC.,

Petitioner,

versus

SECRETARY OF LABOR, THE OCCUPATIONAL

SAFETY & HEALTH REVIEW COMMISSION,

Respondents-Appellees.

Petition for Review of an Order of the

Occupational Safety and Health Review Commission

BEFORE: DUBINA and WILSON, Circuit Judges, and

CORRIGAN,* District Judge.

PER CURIAM:

The petition for rehearing filed by Petitioner, EMCON/

OWT, Inc. is DENIED.

* Honorable Timothy J. Corrigan, United States District Judge

for the Middle District of Florida, sitting by designation.

24a

Appendix C

ENTERED FOR THE COURT:

s/ Joel F Dubina

UNITED STATES CIRCUIT JUDGE

25a

APPENDIX D — RELEVANT CODES OF FEDERAL

REGULATION

§ 1926.650 Scope, application, and definitions applicable

to this subpart.

(a) Scope and application. This subpart applies to all

open excavations made in the earth’s surface. Excavations

are defined to include trenches.

(b) Definitions applicable to this subpart.

Competent person means one who is capable of

identifying existing and predictable hazards in the

surroundings, or working conditions which are unsanitary,

hazardous, or dangerous to employees, and who has

authorization to take prompt corrective measures to eliminate

them.

Excavation means any man-made cut,-cavity, trench, or

depression in an earth surface, formed by earth removal.

Hazardous atmosphere means an atmosphere which by

reason of being explosive, flammable, poisonous, corrosive,

oxidizing, irritating, oxygen deficient, toxic, or otherwise

harmful, may cause death, illness, or injury.

26a

Appendix D

§ 1926.651 Specific excavation requirements.

(k) Inspections. (1) Daily inspections of excavations,

the adjacent areas, and protective systems shall be made by

a competent person for evidence of a situation that could

result in possible cave-ins, indications of failure of protective

systems, hazardous atmospheres, or other hazardous

conditions. An inspection shall be conducted by the

competent person prior to the start of work and as needed

throughout the shift. Inspections shall also be made after

every rainstorm or other hazard increasing occurrence. These

inspections are only required when employee exposure can

be reasonably anticipated.

(2) Where the competent person finds evidence of a

situation that could result in a possible cave-in, indications

of failure of protective systems, hazardous atmospheres, or

other hazardous conditions, exposed employees shall be

removed from the hazardous area until the necessary

precautions have been taken to ensure their safety.

(1) Walkways shall be provided where employees or

equipment are required or permitted to cross over

excavations. Guardrails which comply with § 1926.502(b)

shall be provided where walkways are 6 feet (1.8 m) or more

above lower levels.