                NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                           File Name: 08a0094n.06
                            Filed: February 4, 2008
                                  No. 07-3384

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

ELAINE L. CHAO , SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR,
      Petitioner
                                                     On Petition for Review of a Decision of the
                                                     Occupational Safety and Health Review
                                                     Commission
           v.
GREENLEAF MOTOR EXPRESS, INC., AND
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION ,
     Respondents

______________________________/


       BEFORE: KENNEDY, MARTIN, and COLE, Circuit Judges.

       KENNEDY, Circuit Judge. The Secretary of Labor (“Secretary”) petitioned for review

of a final order issued by the Occupational Safety and Health Review Commission

(“Commission”) affirming all seven citation items issued to Greenleaf Motor Express, Inc.

(“Greenleaf”) for violations of the permit-required confined space standard set forth under 29

C.F.R. § 1910.146, but reversing the Administrative Law Judge’s (“ALJ”) characterization of

four citation items as “willful” violations. Because the Commission’s finding that the violations

were “serious” rather than “willful” is supported by substantial evidence in the record, we

AFFIRM the Commission’s decision and DENY the petition for review.

                                        BACKGROUND

       Greenleaf operates a tanker transport business that includes transferring titanium dioxide

slurry between two plants at the nearby chemical manufacturing facility of its client, Millennium
Chemicals (“Millennium”). The transfer process requires Greenleaf’s tankers to be pressurized

to facilitate offloading of the slurry. There are two hoses in Millennium’s offload area that are

used to pressurize Greenleaf’s tankers – one contains plant air and the other contains nitrogen, a

substance that displaces oxygen. To pressurize the tanker for offloading, Millennium operators

hook up either the nitrogen or plant air line to an intake valve located on the side of the tanker.

The nitrogen line had been marked as containing nitrogen until about two months prior to the

accident which resulted in the citations in contest. It appears that the identification of the

nitrogen hose was removed by painters during routine maintenance.

       Once the slurry has been offloaded, Greenleaf’s tankers return to its facility where

Greenleaf employees pressure-wash the inside of the tankers with water to collect the residual

slurry for recovery. To do so, the assigned tank cleaner must enter the tanker through a thirty-

three inch diameter manhole located at the top of the tanker; this manhole is the only means of

entry to and exit from the tanker. The tank cleaner places a ladder and a light down into the tank

along with a pressurized hose. The tank cleaner then washes the walls inside the tank with water.

       In 1994, Greenleaf contracted with Charles Management to conduct a confined space

analysis of Greenleaf’s tanks and to develop a confined space program. The developed Greenleaf

program specifically designates the tank trailers used to haul slurry as permit-required confined

spaces, although it does not explain the reasons for such a designation. The program sets out

safety procedures to be followed for permit-required confined space entry, such as monitoring for

oxygen deficiency to ensure that oxygen levels are between 19.5% and 23.5%. The program also

covers the need for ventilation, completion of entry permits, usage of an attendant and

communication equipment, emergency rescue procedures, and training of entrants.


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       At the time this case arose, Greenleaf employees were not following the entry procedures

of its confined space program. As the tank room “lead man,” former employee Earl Jeffers was

responsible for weekly calibrating Greenleaf’s air monitor and submitting records of the air

readings for entry permits. Jeffers testified that he was instructed by his predecessor to record

weekly calibrations of the air monitor but not to bother testing the tankers before issuing an entry

permit. Instead, Jeffers filled out the entry permits by fabricating a number between 19.5% and

23.5% (the range permitted by the standard). Rick Snyder replaced Jeffers as the lead man in

September 2002. Apparently, with the exception of one permit dated October 21, 2002, no

permits were completed for any entries during the four months of September, October,

November, and December. Snyder testified that prior to 2003, he did not even know that

Greenleaf had air monitoring equipment. Employees routinely entered the tankers to clean them

without first testing the air for oxygen deficiency and without using harnesses, attendants,

communication equipment, or ventilation equipment.

       On the evening of December 20, 2002, Greenleaf employee Jeremy Imrie performed

slurry transfers at Millennium’s facility. According to the testimony of Millennium personnel,

nitrogen was used that night to pressurize the tanker operated by Imrie. The following morning,

Greenleaf assigned Imrie the task of cleaning the tanker he had operated the night before.

Shortly after he commenced work, Greenleaf personnel found Imrie dead inside the bottom of the

tanker. Testing revealed an oxygen reading of 11% inside the tanker.

       Following an inspection, the Secretary issued Greenleaf serious, willful, and other-than-

serious citations alleging violations of the permit-required confined spaces standard1 of the


       1
           The permit-required confined spaces standard is set out in 29 C.F.R. § 1910.146.

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Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq (“OSH Act”). Greenleaf

contested these citations. An Administrative Law Judge (“ALJ”) affirmed all but one citation

item as alleged. Greenleaf timely filed a Petition for Discretionary Review of the ALJ’s decision

to the full Commission, which was granted. On review, the Commission affirmed the seven

citation items, but re-characterized the four willful items2 as serious. The Secretary timely

petitioned this court for review of the Commission’s decision.

                                           ANALYSIS

       We give considerable deference to Commission decisions on appellate review. In

reviewing decisions of the Commission, we will uphold the Commission’s findings of fact so

long as they are supported by substantial evidence. 29 U.S.C. § 660(a); Nat’l Eng’g &

Contracting Co. v. Herman, 181 F.3d 715, 721 (6th Cir. 1999).

       Substantial evidence is such relevant evidence as a reasonable mind might accept

       as adequate to support a conclusion. The substantial evidence test protects both

       the factual findings and the inferences derived from them, and if the findings and

       inferences are reasonable on the record, they must be affirmed even if this court

       could justifiably reach a different result de novo.




       2
         Willful Citation 2: Item 1 alleges violations of 29 C.F.R. §§ 1910.146(d)(3)(iv) and
(d)(4)(ii), which require the employer to ventilate the permit space and provide ventilating
equipment. Item 2 alleges a violation of 29 C.F.R. § 1910.146(d)(5)(i), which requires the employer
to test conditions in the permit space before entry is authorized. Item 3 alleges a violation of 29
C.F.R. § 1910.146(d)(6), which requires the employer to provide an attendant outside the permit
space for the duration of entry operations. Item 4 alleges violations of 29 C.F.R. §§ 1910.146(d)(10)
and (e)(1), which require the employer to develop and implement a system for entry permits that
document the completion of safety measures before entry is authorized.

                                                 4
Nat’l Eng’g, 181 F.3d at 721 (internal quotations omitted). The willfulness of an OSH Act

violation is a factual finding that we review under the substantial evidence standard. Id.

       A willful violation is action “taken knowledgeably by one subject to the statutory

provisions in disregard of the action’s legality.” Nat’l Eng’g, 181 F.3d at 721 (quoting Empire-

Detroit Steel Div. v. Occupational Safety and Health Rev. Comm’n, 579 F.2d 378, 383 (6th Cir.

1978)). Conduct is willful if it is conscious, intentional, deliberate, and voluntary. Id. A

violation is also characterized as willful if the action is taken with “plain indifference” to

employee safety and the requirements of the OSH Act. Selkirk, Inc. v. Occupational Safety and

Health Rev. Comm’n, No. 01-3539, 2002 WL 31296333, at *3 (6th Cir. Oct. 10, 2002) (citing

DCS Sanitation Mgmt., Inc. v. Occupational Safety and Health Rev. Comm’n, 82 F.3d 812, 816

(8th Cir. 1996)).

       The Secretary contends that the Commission’s finding that Greenleaf’s violations were

serious rather than willful is not supported by substantial evidence. Rather, the Secretary argues,

the evidence requires a finding that Greenleaf’s violations were committed with an intentional

disregard of or plain indifference to the requirements of the OSH Act. We disagree.

       The Secretary’s central argument for finding a willful violation is that Greenleaf did not

follow its internal confined space program, which designated the slurry tankers as permit-

required confined spaces (although it did not identify the basis of that determination). The

Secretary argues that Greenleaf’s internal procedures demonstrate that Greenleaf actually knew

that its tankers required permits under the OSH Act. But here the ALJ and the full Commission

found that Greenleaf only had constructive knowledge of the violative conditions, i.e. that

nitrogen was sometimes used to offload the slurry creating the potential for the tankers to contain


                                                  5
a hazardous atmosphere. There is evidence in the record to show Greenleaf employees thought

that Millennium used only compressed air to offload the slurry tankers. It is undisputed that if

the slurry tankers were pressurized with air rather than nitrogen, the tankers would not have the

potential to contain a hazardous atmosphere, and thus would not require permits under the

regulations. Thus, if Greenleaf employees were correct in assuming that compressed air was the

only substance used, it would be a reasonable inference that Greenleaf believed its internal

policies went above and beyond the statutory requirements by designating the slurry tankers as

permit-required. In the absence of actual knowledge of the violative conditions, the Commission

found that the evidence that Greenleaf employees falsified atmospheric testing reports (without

Greenleaf’s knowledge), as well as the plant supervisor’s apparent dishonesty in claiming that he

would have monitored Imrie’s tank entry had he known about it, shows only a failure to comply

with company procedures that Greenleaf did not know were required under the OSH Act. Thus,

the Commission concluded that there was no basis on which to conclude that Greenleaf’s non-

compliance with the provisions demonstrated a conscious disregard of its statutory obligations.

We cannot say that this is an unreasonable conclusion based on the relevant evidence.

       Alternatively, the Secretary argues that the evidence demonstrates Greenleaf’s plain

indifference to the requirements of the OSH Act, which if found would also support a willfulness

characterization. Commissioner Rogers dissented on this ground. Commissioner Rogers

reasoned that the falsification of atmospheric testing reports leads to the inference that even if

Greenleaf knew that the statutory provisions applied, it would not care. The majority of the

Commission, however, disagreed. We find that the Commission’s conclusion is supported by the

fact that there is no evidence in the record to suggest that any Greenleaf supervisor knew the


                                                  6
employees were falsifying the reports. Furthermore, prior to this incident, Greenleaf had not

received any citations for safety violations nor had any Greenleaf employee reported

experiencing breathing difficulties inside a slurry tanker. Because there is no evidence in the

record to suggest that Greenleaf disregarded warnings that it was exposing its employees to a

hazardous condition, we find that the Commission’s finding that Greenleaf was not plainly

indifferent to the requirements of the OSH Act is supported by substantial evidence.

                                         CONCLUSION

       For the foregoing reasons, we AFFIRM the decision of the Commission as supported by

substantial evidence and DENY the petition for review.




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