             Case: 13-11478    Date Filed: 06/09/2014   Page: 1 of 6


                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                        __________________________

                               No. 13-11478
                           Non-Argument Calendar
                        __________________________

                              Agency No. 11-3032

ROBERTS SAND COMPANY, LLLP,

                                                                        Petitioner,

                                     versus

SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR,

                                                                       Respondent.

                        __________________________

 Petition for Review of a Decision of the Occupational Safety and Health Review
                                   Commission
                         __________________________

                                 (June 9, 2014)

Before PRYOR, FAY, and COX, Circuit Judges.

PER CURIAM:
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      This case comes to us pursuant to 29 U.S.C. § 660(a) as a petition to review

a final order of the Occupational Safety and Health Review Commission

(Commission). When the Occupational Safety and Health Administration (OSHA)

issues a general duty clause citation, an employer may contest it—ordinarily with a

hearing before an administrative law judge (ALJ). 29 C.F.R. § 2200.61. If the

ALJ finds in favor of OSHA, the employer may seek review by the full

Commission.     29 C.F.R. § 2200.91(b). However, such review is discretionary.

Id. If the Commission declines to review the ALJ’s decision as it did here, the

ALJ’s decision becomes a final order of the Commission. 29 C.F.R. § 2200.90(d).

      We review the Commission’s factual findings—and its determination of a

serious violation based on those findings—to ensure they are supported by

substantial evidence in the record. Daniel Int’l. Corp. v. Occupational Safety &

Health Review Comm’n, 683 F.2d 361, 363–64 (11th Cir. 1982). Substantial

evidence is more than a mere scintilla but less than a preponderance. Hale v.

Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). It means such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion. Consolidated

Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229, 59 S. Ct. 206, 216 (1938)

(citations omitted); see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.

1420, 1420 (1971)(quotations omitted). Thus, even if the evidence appears to

weigh against the decision of the Commission, we must affirm if a reasonable

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mind might accept its conclusions. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th

Cir. 1990). We review legal determinations by the Commission to determine if

they are arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with the law. 5 U.S.C. § 706; Fund for Animals, Inc. v. Rice, 85 F.3d

535, 541 (11th Cir. 1996).

      In this case, Roberts Sand Company contests a general duty clause citation

that the OSHA issued after falling clay crushed a Robert Sand’s employee working

in a “borrow pit.” The general duty clause provides that each employer “shall

furnish to his employees employment and a place of employment which are free

from recognized hazards that are causing or are likely to cause death or serious

physical harm to his employees.” 29 U.S.C. § 654(a)(1). OSHA can only issue

general duty clause citations where it has not promulgated a regulation covering a

particular situation at an employer’s worksite. Occupational Safety and Health Act

of 1970, § 5(a)(1), 29 U.S.C. § 654(a)(1); see also Reich v. Arcadian Corp., 110

F.3d 1192, 1199 (5th Cir. 1997) (citations omitted) (noting that “courts have

consistently held that standards are the preferred enforcement mechanism and that

the General Duty Clause serves as an enforcement tool of last resort”).

      In order to establish an employer’s violation of the general duty clause,

OSHA bears the burden to prove four elements. Waldon Healthcare Ctr., 16 BNA

OSHC 1052, 1058 (No. 89-2804, 1993). Those four elements are: (1) that a

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condition or activity in the employer’s workplace presented a hazard to employees;

(2) that the cited employer or the employer’s industry recognized the hazard; (3)

that the hazard was causing or likely to cause death or serious physical harm; and

(4) that feasible means existed to eliminate or materially reduce the hazard. Id.

(citations omitted). The parties here dispute only one element: whether there were

feasible means to eliminate the hazard or to materially reduce it. (Petitioner’s

Initial Br. at 22); see also Champlin Petroleum Co. v. Occupational Safety &

Health Review Comm’n, 593 F.2d 637, 640 (5th Cir. 1979) (discussing the four

factors OSHA must demonstrate to establish a violation of the general duty clause).

In other words, was it “feasibly preventable”?        “Though resistant to precise

definition, the criterion of preventability draws content from the informed

judgment of safety experts.” National Realty and Constr. Co. v. Occupational

Safety & Health Review Comm’n, 489 F.2d 1257, 1266 (D.C. Cir. 1973). A

proposed abatement measure is not feasible if “conscientious experts, familiar with

the industry, would not take it into account in prescribing a safety program.” Id.

      We hold that here, even though no evidence in the record shows that any

other borrow pits have adopted OSHA’s proposed abatement methods,

conscientious experts, familiar with the industry, would clearly take the proposed

abatement method of sloping the walls of the excavation into account in

prescribing a safety program. (R. at 36, 176, 229).

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      Petitioner, though, states the standard slightly differently. It says that in

order for a proposed abatement method to be feasible, the proposed method must

be recognized by “knowledgeable persons familiar with the industry as necessary

and valuable steps for a sound safety program in the particular circumstances

existing at the employer’s worksite.” ((Petitioner’s Initial Br. at 24) (citing

Secretary of Labor v. Cerro Metal Prods. Div., Marmon Grp., Inc., 12 BNA OSHC

1821 (No. 78-5159, 1986) (citing National Realty and Construction Co. v.

Occupational Safety & Health Review Comm’n, 489 F.2d 1257, 1266 (D.C. Cir.

1973)) (emphasis added)). By its terms, the “necessary and valuable” standard put

forth by the Commission is a different and more stringent standard than the “take

into account” standard put forth by the D.C. Circuit. Compare Cerro Metal Prods.

Div., 12 BNA OSHC at 1823 with National Realty, 489 F.2d at 1266. Yet the

Respondent treats the two standards as equivalents. See Respondent’s Br. at 18.

And the Commission often does the same. See, e.g., Secretary of Labor v. Pegasus

Tower, Inc., 21 BNA OSHC 1406 (No. 04-1612, 2005). Thus, the standard the

Commission applied in this case was neither arbitrary nor capricious. See Fund for

Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir. 1996) (explaining the highly

deferential nature of arbitrary and capricious review).

      Substantial evidence in the record supports the Commission’s finding. The

president of the Roberts Sand Company himself admitted that OSHA’s proposed

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abatement method—sloping the wall—was one method for making the borrow-pit

worksite safer. (R. at 176). Roberts Sand’s safety trainer also agreed that the

proposed abatement method was one possibility for making the pit safer. (R. at

229). And MHSA Inspector Owens also agreed that sloping the pit wall could be

done at this worksite. (R. at 36).

      Based on the record, OSHA presented substantial evidence that its proposed

abatement measure would materially reduce the hazard.

      Accordingly, we deny Roberts Sand Company’s petition, and affirm the

ALJ’s decision which was the Final Order of the Occupational Safety and Health

Review Commission.

      DENIED AND AFFIRMED.




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