U.S. Court of Appeals Denies Petition in Fight Over Citations Issued by OSHA in Toxic Fumes Case

In this case a man was rendered unconscious after being exposed to toxic fumes in a large container while he was working inside of it.  Fortunately for this worker, he was rescued by the local fire department. His employer, Dana Container, wound up fighting citations from the Occupational Safety and Health Administration (OSHA).  The administrative law judge and the Occupational Safety Review Commission upheld OSHA’s actions, and Dana then turned to the U.S. Court of Appeals for review. Because Dana has not provided a compelling reason to overturn the commission’s determination, the petition for review was denied.

Dana operates a truck-tank washing facility near the Stevenson Expressway in Summit, Ill. The tanks cleaned at Dana’s facility are long metallic cylinders used to transport products such as ink and latex. After the tanks were emptied at their destination, truckers then brings them to Dana’s facility for cleaning so that they can haul different products without changes.

Before washing a tank, employees drain any residual product from it.  Then employees insert a mechanical spinner that rotates scrubbers from one end of the tank to the other, simultaneously dousing it with soap or solvent (or both).  Then the tanks are given a final rinse of water and blown dry. Most of the time, this process works fine in cleaning the tanks. When it does not work, 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.

At Dana’s facility in Summit, Ill., employees enter tanks to clean them approximately ten times per month. Before doing so, an 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 to a mechanical retriever 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. In addition, the employee must wear a respirator and 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.

In the cold early morning hours of Jan. 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, Fox entered the tank prior to cleaning it, without attaching himself to the retrieval device following the entry permit procedures. After a short time, Jaimes looked inside, saw Fox unconscious in a pool of sludge and called the Summit Fire Department.

The firefighters transported Fox to a nearby hospital. Fox was diagnosed with “Syncope and collapsed, toxic effect of unspecified gas, fume, or vapor” (i.e., fainting).

When a local TV broadcast showed the rescue, an OSHA inspector happened to see it before heading to work. The inspector, Jami Bachus, volunteered to inspect Dana’s facility and arrived at the Summit station within three hours of the incident. After the inspection, Bachus issued two citations to Dana for serious and willful violations of OSHA. Most of the items listed in the citations were 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 the administrative law judge.  The judge vacated a number of the citation items, because for the most part she found that Dana qualified for the most stringent “alternate entry procedures” described in ¶1910.146(c)(5).  The administrative law judge also upheld the findings of several of the specific violations.

Both parties appealed the ALJ’s decision to the commission. The commission decided contrary to the ALJ that Dana was not eligible for the alternate entry procedures, and it reinstated those items in the citations. It affirmed the rest of ALJ’s findings.  Dana filed a petition for review to the U.S. Court of Appeals.

Dana argued that the ALJ lacked the requisite knowledge to support the order and that it should be exonerated because the incident resulted from “unpreventable employee misconduct.” In addition, it was argued that the Secretary did not prove the “willful” element of some of the items. Lastly, it argued that the commission should have found that it satisfied the standard for alternate entry procedure.

The appeals panel stated that the Occupational and Safety Health Act is not a strict liability statute. This means that the Secretary was required to prove that Dana knew about the problem in order to establish a “serious” violation. Kokosing Construction Co., 21 BNA OSHC 1629, 1631 (No. 04-1665, 2006), Aff’d 232 F. App.’x 510 (68 Cir. 2007).  The court found that because Fox was a supervisor and had actual knowledge of his misconduct, the commission imputed his knowledge to Dana.

When an employee is acting within the scope of her employment, her knowledge is to impute it to the employer. U.S. v. One Parcel of Land Located at 7326 Highway 45 North, 3 Lake, Oneida County, Wis., 965 F.2d 311, 316 (7th 1992). Conduct is “within the scope of employment when [it is] ‘actuated, at least in part, by a purpose to serve the [employer],’ even if it is forbidden by the employer.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 756 (1998) (quoting Restatement (Second) of Agency ¶¶228(1)(c), 230 (1957)).

Here, Fox knew that he was violating the rules when he entered the dirty tank in order to kick loose a stuck valve so that he could then drain the tank. His act was in furtherance of Dana’s tank cleaning business. The court found that there was no issue with the commission’s decision to impute Fox’s knowledge to Dana.

While serious violations of 29 C.F.R. ¶1910.146 each carry a maximum penalty of $7,000, willful violations are subject to stiffer monetary penalties – up to $70,000 for each one.  29 U.S.C. ¶666(a)-(b).  The court of appeals found that the evidence of a failure to follow up on documented violations of Dana’s safety-permit protocol, and it reasonably concluded that this defeated the finding of a good faith effort that would rescue Dana from willful conduct.

Finally, the appeals panel found that Dana offered no reason why the court should not accept the Commission’s determinations. The commission considered and weighed the data in the reports and expert testimony provided a reasonable explanation in support of its finding that Dana had not met the alternate entry procedures standards in ¶1910.146(c)(5).  Inasmuch as the case does not meet a standard that the expert witnesses lack credibility, and for the other reasons stated above, the U.S. Court of Appeals for the Seventh Circuit denied Dana’s petition for review.

Dana Container, Inc. v. Secretary of Labor, No. 16-1087 (U.S. Court of Appeals for the 7th Circuit, Feb. 1, 2017).

Kreisman Law Offices has been handling work injury cases, toxic fume injury cases, diesel fuel fumes injury cases and catastrophic injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Wheeling, Buffalo Grove, Vernon Hills, Mount Prospect, Prospect Heights, Forest Park, Crestwood, River Forest, South Holland, Alsip, Antioch, Arlington Heights, Barrington, Blue Island, Clarendon Hills, Deerfield, Chicago (Wicker Park, Logan Square, Lincoln Park, Lincoln Square, Andersonville, Chinatown), Wilmette, Skokie and Des Plaines, Ill.

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