                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-3968
                                  ___________

Omaha Paper Stock Company,             *
                                       *
            Petitioner,                *
                                       * On Petition for Review from an
      v.                               * Order of the Occupational Safety
                                       * and Health Review Commission.
Secretary of Labor,                    *
                                       *
            Respondent.                *
                                  ___________

                            Submitted: June 14, 2002

                                 Filed: September 17, 2002
                                  ___________

Before RILEY, BEAM and MELLOY, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

       In this enforcement action under Occupational Safety and Health Act of 1970,
29 U.S.C. § 651 et seq. (OSHA), Omaha Paper Stock Company (OPS) brings this
petition for review of an order of the Occupational Safety and Health Review
Commission (the Commission). The Commission found that OPS violated OSHA's
permit-required confined spaces (PRCS) standard at its Cincinnati, Ohio, paper
recycling and recovering facility. We affirm the Commission's order.
I.    BACKGROUND

       At its Cincinnati plant, OPS uses a Lindemann baler, which is thirty to forty
feet long, to bale paper. The baling process begins outside of the facility, where a
lineman sorts through the paper to be baled and removes "contamination," such as
plastic bottles and glass. The paper is then pushed onto a conveyor belt and moved
to the top of the baler, where it falls through a chute to the baler chamber, which is
approximately six feet long and five feet wide. Depending on the type of material
being fed into the baler, a fluffer may be attached to the inside of the baler chamber.
The fluffer swings on a hinge and has rotating blades that generate air to move the
paper around inside the chamber. Once a sufficient amount of paper has been placed
inside the chamber, a bale is made and an OPS employee removes the bale with a
forklift.

       Christopher Tracy began working as a lineman for OPS on August 31, 1998.
On September 18, 1998, while voluntarily working extended hours, Tracy heard the
alarm that signals a jam in the baler. Although Tracy was only trained to do the
"outside job" of removing non-paper contaminants, and even though he had been told
not to enter the baler chamber, he nevertheless climbed inside the chamber to clear
the jam in the overhead chute. Once the jam was dislodged, a great amount of paper
fell onto him, knocked him to the floor of the chamber, and submerged him to the
extent that he was unable to move his legs. Tracy was discovered approximately
fifteen minutes later by a supervisor, who called the local fire department. The fire
department extricated Tracy roughly an hour later. The pile of paper on Tracy was
estimated to be five or six feet deep and weighed approximately 150 to 225 pounds.

      At the time of Tracy's accident, OPS had a lockout/tagout procedure in place
for evaluating jams in the baler. Once a paper jam was discovered, the employee
operating the baler would turn the baler key to "off," remove the key and put it in his



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or her pocket, inform the manager on duty, and put a "lockout"1 on the main power
source. At that point, the manager would assess the situation and determine the best
way to clear the jam.

       Tracy had only worked at the plant for approximately two weeks at the time of
the accident, and had not been fully trained in the lockout/tagout procedure.
Furthermore, Tracy did not normally work inside the plant near the baler, but, as
indicated, worked outside as a lineman, clearing contamination from the conveyor
belt before it moved the paper into the plant. But, because the Cincinnati facility was
trying to catch up on some work, it staffed a small, temporary second shift, comprised
of three employees on the day of Tracy's accident. As a result, Tracy performed tasks
that were beyond the scope of his usual job. Tracy testified at the hearing that on the
day of the accident, the baler had previously jammed and he had cleared the jams by
reaching in and flipping paper off the fluffer arm. When the larger jam that caused
the accident occurred, a more experienced employee on duty (but not a manager)
looked at the jam and seemed to indicate that Tracy should enter the baler chamber
to clear the jam by pulling the paper down. Consequently, Tracy entered the chamber
and the accident ensued. Tracy testified that he had previously been told by
management not to enter the baler chamber and that he knew, in hindsight, that it was
"a stupid move" to climb into the baler chamber. The manager on duty at that time
was busy operating another baler and did not know about the jam until she discovered
Tracy caught in the baler chamber.

       In November 1998, representatives of the Secretary of Labor conducted an
inspection of the Cincinnati facility, and eventually issued a citation alleging fourteen
violations of the PRCS standard, 29 C.F.R. § 1910.146, and the lockout/tagout
standard, 29 C.F.R. § 1910.147. Following a hearing, the Administrative Law Judge
(ALJ) vacated the alleged violations of the lockout/tagout standard, finding that such


      1
          The term "lockout" apparently refers to a padlock-type of device.

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failures had been caused by unpreventable employee misconduct. The ALJ affirmed
eight violations of the PRCS standard, classified each violation as "serious," and
assessed $2000 per violation for each of the eight violations. The Commission
affirmed the ALJ's order but reduced the penalty to a total of $12,000 for all eight
violations.

      On appeal, OPS argues that the baler chamber is not a permit-required space
and that even if it is, the violations which occurred here were not "serious" violations.
OPS also contends that the Commission abused its discretion by not further reducing
the penalties imposed by the ALJ.

II.   DISCUSSION

       In reviewing the Commission's order, we affirm those factual findings
"supported by substantial evidence on the record considered as a whole." 29 U.S.C.
§ 660(a); Reich v. Con Agra Flour Milling Co., 25 F.3d 653, 655 (8th Cir. 1994).
Substantial evidence is relevant evidence that a reasonable person might accept as
adequate to support a conclusion. Reich, 25 F.3d at 655. We will uphold the
Commission's legal conclusions unless they are "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

      As it was before the Commission, the central issue in this appeal is whether the
Secretary has met his burden of showing that the baler chamber is a "permit-required
confined space." This term means a confined space that has one or more of the
following characteristics:

      (1) Contains or has a potential to contain a hazardous atmosphere; (2)
      Contains a material that has the potential for engulfing an entrant; (3)
      Has an internal configuration such that an entrant could be trapped or
      asphyxiated by inwardly converging walls or by a floor which slopes


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      downward and tapers to a smaller cross-section; or (4) Contains any
      other recognized serious safety or health hazard.

29 C.F.R. § 1910.146(b).

       If a confined space is a PRCS, the employer responsible for the space can select
and implement protective measures from a range of available options including:
posting signs and permanently closing or barricading the space to prevent employee
entry, 29 C.F.R. § 1910.146(c)(2), (3); authorizing employees to enter in accordance
with a written PRCS program which meets specific requirements, 29 C.F.R. §
1910.146(c)(4); and reclassifying the space as a non-permit space by eliminating the
hazards and documenting the basis for determining that those hazards have been
eliminated, 29 C.F.R. § 1910.146(c)(7)(i)-(iii). It is clear that OPS has not barricaded
the baler chamber or devised a written PRCS program. The arguments from the
proceedings below focus on whether the lockout/tagout program eliminates the baler
chamber hazards, thereby effectively reclassifying the space as a non-permit required
space.

       The Commission found that the baler chamber was a PRCS within the meaning
of 29 C.F.R. § 1910.146(b)(4) (other recognized hazards), reasoning that employees
entering the baler chamber are potentially exposed to two other recognized serious
safety hazards–being struck and buried by overhead material (as was the case here),
and being struck by the baler ram if the baler were to start up unexpectedly. The
Commission rejected OPS's argument that its lockout/tagout program effectively
eliminated these hazards. Furthermore, the Commission characterized the violations
as serious because OPS knew it had not complied with the permit-space requirements,
relying on its belief that the baler chamber was not a PRCS. We agree with the
Commission that the baler chamber is a PRCS based on the standard set forth in 29
C.F.R. § 1910.146(b)(4).



                                          -5-
       The danger of being struck by overhead material is a recognized serious safety
or health hazard, and the lockout/tagout program cannot be substituted for
compliance with the PRCS standard. As previously noted, a space that would
otherwise qualify as a PRCS cannot be reclassified as a non-permit confined space
unless the employer has eliminated the potential hazards. 29 C.F.R. §
1910.146(c)(7)(i). The lockout/tagout procedure perhaps reduces the possibility of
being struck by overhead material, but it certainly does not eliminate it. For instance,
under the scenario in which Tracy's accident occurred, if he had followed the
lockout/tagout procedure correctly, the manager on duty would have assessed the
situation and determined how best to remove the paper jam, after the machine was
locked out. While one would hope the manager would not send an employee into the
six-by-five foot baler chamber to unleash one hundred fifty pounds of paper from an
overhead chute into that space, the final course of action would have been the
manager's judgment call. Furthermore, even the manager's action of leaning inside
the chamber to evaluate the potential overhead danger is still considered "entering"
the baler under the regulations because in so doing, the manager breaks the plane of
an opening into a confined space. See 29 C.F.R. § 1910.146(b) (stating that "entry"
occurs when any part of the entrant's body breaks the plane of an opening into the
space). Thus, the lockout/tagout procedure itself exposes the manager to the
overhead paper danger. Obviously then, the lockout/tagout procedure does not
eliminate this hazard, and cannot be substituted for compliance with the PRCS
standard.

       The other serious safety or health hazard is the possibility of an employee
getting caught in the baler chamber if the baler suddenly became energized and the
baler ram started moving. As the Commission noted, OPS "does not dispute that its
baler chamber poses an 'unexpected activation' hazard to any employee who enters
it without first locking out and tagging the machine's energy source and that that
hazard is both 'recognized' and 'serious' within the meaning of alternative (4) of the
PRCS definition." Sec'y of Labor v. Omaha Paper Stock Co., 2001 O.S.H.R.C.

                                          -6-
Docket No. 99-0353, slip op. at 5 n.7 (Nov. 1, 2001). OPS instead argues that the
lockout/tagout procedure adequately addresses this hazard. But, like the overhead
paper situation, this hazard is not eliminated by the lockout/tagout procedure. It
might be eliminated, assuming the employee follows the procedure correctly and
locks out the main power to the baler, but it is not completely2 eliminated so as to
qualify the baler chamber for reclassification as a non-permit required space under
section 1910.146(c)(7). We therefore affirm the Commission's determination that
both of these hazards qualify as other serious safety or health hazards, and render the
PRCS standard applicable to the baler chamber.

        OPS next contends that the Commission erred in affirming the ALJ's finding
that the violations of the PRCS standard were "serious" as opposed to de minimis or
"other than serious." We disagree. To demonstrate a serious violation of a safety
standard under the Act, the Secretary must prove that the cited standard applies and
that its requirements were not met, that employees were exposed to, or had access to,
the violative condition, and that the employer knew or, through the exercise of
reasonable diligence, could have known of this condition. D.A. Collins Constr. Co.
v. Sec'y of Labor, 117 F.3d 691, 694 (2d Cir. 1997). Further, 29 U.S.C. § 666(k)
requires that "there is a substantial probability that death or serious physical harm
could result" from the hazard in order for a serious violation to exist.




      2
        The Secretary's expert testified that turning the baler's power key to "off"
would not eliminate the possibility of unexpected activation because this procedure
was not an "energy-isolating device. It's just simply a control circuit. The control
circuit is just telling some relays to drop out, but it's not actually withdrawing the
main power from the unit." Sec'y of Labor v. Omaha Paper Stock Co., Docket No.
99-0353, Tr. at 121-22 (Oct. 13, 1999). He further testified that control circuits
occasionally fail, and something as simple as a short-out in the circuit could suddenly
energize the baler when it has only been locked out by a control circuit.

                                         -7-
       OPS's argument centers around the "knowledge" component of the serious
violation elements, asserting that the violations could not be serious because OPS did
not know that the baler chamber was a PRCS. The Commission found that OPS did
not necessarily have to know the baler chamber was a PRCS and instead ruled that
the Secretary need only establish that OPS knew of the dangerous conditions
constituting a violation. Having reviewed the record, we find that the Commission's
ruling in this regard is not arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law. Cf. Danco Constr. Co. v. Occupational Safety and
Health Review Comm'n, 586 F.2d 1243, 1246-47 (8th Cir. 1978) (holding that
employer had requisite "knowledge" for serious safety violation when it left
inexperienced employees unsupervised near a dangerous power source). OPS
certainly knew of the dangers inherent in the baler chamber, and also knew that one
of the three employees on the temporary second shift was inexperienced and
relatively untrained. Further, OPS reasonably could have known that employees were
entering the baler chamber to clear jams. Tracy testified that he saw another
employee climb into the baler a few days before his accident, and that he also had
previously reached into the baler on the day of the accident. In light of these
conditions, we find the knowledge component has been met.

       Finally, OPS argues the Commission erred in not further abating the penalties
imposed by the ALJ. We review the penalties assessed by the Commission for an
abuse of discretion. Brennan v. Occupational Safety and Health Review Comm'n,
487 F.2d 438, 442 (8th Cir. 1973). The ALJ took into consideration the gravity of the
violation, as well as OPS's size, history of previous violations, and lack of bad faith
when determining the appropriate penalty. See 29 U.S.C. § 666(j). While the ALJ
found the violations to be "moderate to high," the Commission determined that the
gravity of violations was merely "moderate" and reduced the total penalties from
$16,000 to $12,000. Considering our standard of review, we find no abuse of
discretion.



                                          -8-
III.   CONCLUSION

      We find that the Secretary has met his burden of establishing that the PRCS
standard applied to OPS's baler chamber, that the standard was not met, that Tracy
and other employees were exposed to the hazardous conditions of the baler chamber,
and that OPS knew, or through the exercise of reasonable diligence, could have
known of the hazardous conditions. See D.A. Collins Constr., 117 F.3d at 694. We
also find that the Commission did not abuse its discretion in determining the
applicable penalties. The Commission's order is affirmed.

       A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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