September 12, 2016
Petition for Review of Dedsion and Order of the Occupational
Safety and Health Review Commission OSHRC No. 09-1184
WOOD, Chief Judge, and Easterbrook and Sykes, Circuit Judges.
not hard to find people who complain about government
regulations, but the regulations often exist because people
do not take optimal precautions on a voluntary basis. This
case illustrates that problem. It arose after toxic fumes in
a large container knocked out a man who was working inside
it. Fortunately, he was rescued by the local fire department,
but his employer, Dana Container, wound up fighting citations
from the Occupational Safety and Health Administration
(OSHA). After an administrative law judge (ALJ) and the
Occupational Safety and Health Review Commission upheld
OSHA's actions, Dana turned to this Court. Because Dana
has not provided a compelling reason to overturn the
Commission's determinations, we deny its petition for
operates a truck-tank washing facility near the Stevenson
Expressway in Summit, Illinois. The tanks cleaned at
Dana's facility are long metallic cylinders used to
transport products such as ink and latex. After the tanks are
emptied at their destination, truckers bring them to
Dana's facility for a cleaning so that they can haul
different products without adulteration. Before washing a
tank, employees drain any residual product from it. They then
insert a mechanical spinner that rotates scrubbers from one
end of the tank to the other, simultaneously dousing it with
soap or solvents (or both). They then give the tank a final
rinse of water and blow it dry. Most of the time, this
process suffices to clean the tank thoroughly. When it does
not, however, employees enter the tank and manually clean out
the remaining sludge or residue. Because the tank space is
confined and may contain chemicals that are hazardous to
health, OSHA has promulgated regulations that require
companies to enforce certain safety precautions when their
employees enter these "permit-required confined spaces
(PRCSs)." 29 C.F.R. § 1910.146.
Dana's facility in Summit, employees enter tanks to clean
them approximately ten times per month. Before doing so, the
employee must obtain an entry permit from a supervisor; the
permit contains a checklist of required safety precautions.
The employee then climbs onto a catwalk above the tank and
hooks a full-body harness he is wearing to a mechanical
retrieval device that can pull him out of the tank if he
becomes incapacitated for any reason. He must also test the
tank air for atmospheric hazards before going in. When he
enters the tank, he is required to wear a respirator and to
conduct continuous atmospheric testing. While an employee is
in the tank, automatic blowers force fresh air into it. A
fellow employee is required to be on standby outside the tank
in order to assist in case of an emergency. OSHA regulations
and Dana's safety rules prohibit employees from entering
a "dirty" tank before it has been mechanically
cold early morning hours of January 28, 2009, one of
Dana's supervisors, Bobby Fox, was on the third shift
along with former employee Cesar Jaimes. Fox was working on a
trailer and encountered a problem with a clogged valve just
as he was about to begin the mechanical cleaning process.
Disregarding the safety rules, he entered the tank prior to
cleaning it, without attaching himself to the retrieval
device or following the entry permit procedures. After a
short while, Jaimes looked inside, saw Fox unconscious in a
pool of chemical sludge, and called the Summit Fire
Department. The firefighters hoisted him out, rinsed off the
chemical residue, and transported him to the hospital. Fox
was diagnosed with "Syncope and Collapse, Toxic Effect
of Unspecified Gas, Fume, or Vapor" (i.e.,
TV news crew broadcast the rescue that morning, and OSHA
inspector Jami Bachus happened to see it before heading to
work. She volunteered to inspect Dana's facility and did
so, arriving at the Summit station within three hours of the
accident. After her inspection, Bachus issued two citations
to Dana for serious and willful violations of the
Occupational Safety and Health Act. Most of the items listed
in the citations were for violations of the PRCS standards
found at 29 C.F.R. § 1910.146. Dana contested the
citations, and the Secretary of Labor and Dana settled some
of the items. The rest were the subject of a hearing before
an ALJ. The ALJ vacated a number of the citation items, for
the most part because she found that Dana qualified for the
less stringent "alternate entry procedures"
described in § 1910.146(c)(5). She also upheld the
findings of several of the specific violations. Both parties
appealed the ALJ's decision to the Commission. This did
not go well for Dana; the Commission decided, contrary to the
ALJ, that Dana was not eligible for the alternate entry
procedures, and so it reinstated those items in the citation.
It affirmed the rest of the ALJ's findings. Dana has
filed a petition for review in this court.
attacks the Commission's decision in several ways. First,
it asserts that it lacked the requisite knowledge to support
the order and that it should be exonerated because the
incident resulted from "unpreventable employee
misconduct." It next argues that the Secretary did not
prove the "willful" element of some of the items.
Last, it contends that the Commission should have found that
it satisfied the standard for alternate entry procedures.
review the Commission's conclusions in enforcement
actions under the Administrative Procedure Act, 5 U.S.C.
§ 701 et seq. We defer to the Commission's
interpretations of law unless they are "arbitrary or
capricious" or contrary to law. 5 U.S.C. § 706;
Chao v. Gunite Corp., 442 F.3d 550, 556 (7th Cir.
2006). We uphold an agency's determination "as long
as [the agency] considered relevant data under the correct
legal standards and offered a satisfactory explanation for
its action." Wisconsin v. E.P.A., 266 F.3d 741,
746 (7th Cir. 2001). An explanation is satisfactory if there
is a rational connection between the facts the agency found
and the decision it made. Howard Young Med. Ctr. Inc. v.
Shalala, 207 F.3d 437, 441 (7th Cir. 2000).
as here, the Commission reverses an ALJ, we confine our
review to the Commission's order. Chao, 442 F.3d
at 556. We must uphold the Commission's factual findings
if they are supported by substantial evidence on the record
as a whole. 29 U.S.C. § 660(a); Stark Excavating,
Inc. v. Perez,811 F.3d 922, 926-27 (7th Cir. 2016).
Substantial evidence is "'such relevant evidence as
a reasonable mind might accept as adequate to support the
conclusion' reached by the agency." Zero Zone,
Inc. v. United States Dep't of Energy,832 F.3d 654,
668 (7th Cir. 2016) (quoting Local 65-B, Graphic
Commc'ns Conference of Int'l Bhd. of Teamsters v.
NLRB,572 F.3d 342, 347 (7th Cir. 2009)); see also
Consol. Edison Co. v. NLRB,305 U.S. 197, 229 (1938)
(explaining that ...