                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                  July 23, 2004
                        FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 03-60511



TRINITY INDUSTRIES INC.,

                                          Petitioner-Cross-Respondent,

                                 versus


OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION;

                                                              Respondent

ELAINE CHAO, SECRETARY, DEPARTMENT OF LABOR,

                                          Respondent-Cross-Petitioner,



                    Petition for Review from the
          Occupational Safety and Health Review Commission
                          Docket No. 95-1597



Before SMITH, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Petitioner-Cross-Respondent,         Trinity    Industries       Inc.

(“Trinity”), petitions for review of a decision of the Occupational

Safety and Health Review Commission (the “Review Commission”).

Trinity   challenges   the   Review   Commission’s   reinstatement      and

affirmation of a citation charging Trinity with violating 29 C.F.R.


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
§ 1915.14(a)(1)(i). By cross-petition, the Secretary of Labor (the

“Secretary”) (1) challenges the Review Commission’s vacature of a

citation for violating 29 C.F.R. § 1915.15(e), and (2) its decision

to   downgrade     the   characterization      of   Trinity’s    citation   for

violation of 29 C.F.R. § 1915.52(a)(2) from “willful” to “serious.”

As we conclude that the governing standard of review precludes any

relief sought by either party, we deny each party’s petition for

review.

                           I.   FACTS & PROCEEDINGS

      Insofar as the issues before us are concerned, the relevant

background facts are undisputed.            They are expressed in detail in

the decision of the Review Commission,1 so we do not restate them

here.

                                 II.   ANALYSIS

      Three citation items are the subject of the instant petitions.

First, the Review Commission reinstated and affirmed citation Item

2e (dismissed earlier by the ALJ), charging Trinity with violating

29   C.F.R.    §   1915.14(a)(1)(i).2         Trinity   argues    that   (1)   §

1915.14(a)(1)(i) is preempted by § 1915.53, which Trinity contends

is the more specific —— and therefore prevailing —— governing

regulation, and (2) that the terms of § 1915.14(a)(1)(i) do not



      1
       Secretary of Labor v. Trinity Indus. Inc., 2002 O.S.H.D.
(CCH) ¶ 32,666, at *1-3, 2003 OSAHRC LEXIS 44 (Apr. 26, 2003).
      2
          Id. at *10-11.

                                        2
apply to newly-constructed barges that have never contained a

hazardous or unknown cargo.          Second, the Review Commission vacated

Item       2g,   which    charged   Trinity   with   violating   29   C.F.R.   §

1915.15(e) for failure to maintain safe conditions inside the

transoms with proper retesting.3 The Secretary seeks reinstatement

of the § 1915.15(e) charge.           Third, the Secretary cross-petitions

the Review Commission’s decision to downgrade from “willful” to

“serious,” citation Item 6a charging Trinity’s with violating 29

C.F.R. § 1915.52(a)(2).

A.     STANDARD   OF   REVIEW

       The Occupational Safety and Health Act of 1970 (the “OSH Act”)

establishes a comprehensive regulatory scheme designed “to assure

so far as possible ... safe and healthful working conditions” for

“every working man and woman in the Nation.”4              In Trinity Marine

Nashville, Inc. v. OSHRC, we explained the governing standard of

review:

       We are bound by the OSHRC’s findings on questions of fact

       3
           Id. at *11-12.
       4
       29 U.S.C. § 651(b).      Responsibilities for setting and
enforcing workplace health and safety standards under the OSH Act
are divided between the Secretary and the Review Commission. The
Secretary is responsible for setting and enforcing the standards,
and the Review Commission carries out the “adjudicatory functions”
of the OSH Act.    See Martin v. Occupational Safety and Health
Review Com’n, 499 U.S. 144, 147-48 (1991). See also id. at 151
(observing the “unusual regulatory structure established by the
Act” because “[u]nder the OSH Act, however, Congress separated
enforcement and rulemaking powers from adjudicative powers,
assigning   these   respective    functions   to   two   different
administrative authorities”).

                                         3
      and reasonable inferences drawn from them if they are
      supported by substantial evidence on the record
      considered as a whole even if this court could
      justifiably reach a different result de novo. See H.B.
      Zachry Co. v. OSHRC, 638 F.2d 812, 815 (5th Cir. Unit A
      Mar.1981); 29 U.S.C. § 660(a). The OSHRC’s legal
      conclusions are reviewed as to whether they are
      “arbitrary, capricious, an abuse of discretion, or
      otherwise not in accordance with law.” See Corbesco, Inc.
      v. Dole, 926 F.2d 422, 425 (5th Cir. 1991); 5 U.S.C. §
      706(2)(A).

      We review the Secretary’s interpretation of an OSHA
      regulation “to assure that it is consistent with the
      regulatory language and is otherwise reasonable.” See
      Martin v. OSHRC, 499 U.S. 144, 156, 111 S. Ct. 1171, 113
      L.Ed.2d 117 (1991) (emphasis in original).5

Our   review    of   the   Review   Commission’s   order   is   therefore

deferential, and a “reasonable” interpretation will be upheld “so

long as the interpretation ‘sensibly conforms to the purpose and

wording of the regulations.’”6           To the extent that a conflict

exists between the interpretations of a regulation by the Review

Commission and the Secretary, we must defer to the interpretation

presented by the Secretary if it is reasonable.7

B.    ITEM 2E: 29 C.F.R. § 1915.14(A)(1)(I)

      Section 1915.14(a)(1)(i) addresses hot work that requires

testing by a Marine Chemist or Coast Guard-authorized person:8


      5
          275 F.3d 423, 426-27 (5th Cir. 2002).
      6
          Martin, 499 U.S. at 151 (citations omitted).
      7
          Id.
      8
       “The term ‘hot work’ means riveting, welding, burning or
other fire or spark producing operations.” 29 C.F.R. § 1915.4(r).
See also 29 C.F.R. § 1915.11(b) (defining “hot work” to include
“any activity involving riveting, welding, burning, the use of

                                     4
     The employer shall ensure that hot work is not performed
     in or on any of the following confined and enclosed
     spaces and other dangerous atmospheres, boundaries of
     spaces or pipelines until the work area has been tested
     and certified by a Marine Chemist or a U.S. Coast Guard
     authorized person as “Safe for Hot Work”:

     Within, on, or immediately adjacent to spaces that
     contain or have contained combustible or flammable
     liquids or gases.

Trinity acknowledges that it did not have a Marine Chemist9 test

the spaces inside the barge transoms for explosive vapors, instead

advancing two legal arguments to challenge the applicability of §

1915.14(a)(1)(i) to this case.

1.   Preemption

     Trinity argues first that § 1915.14(a)(1)(i) is preempted by

29 C.F.R. § 1915.53(e)(1), which states:

     A competent person shall test the atmosphere in the space
     to ensure that it does not contain explosive vapors,
     since there is a possibility that some soft and greasy
     preservatives may have flash points below temperatures
     which may be expected to occur naturally. If such vapors
     are determined to be present, no hot work shall be
     commenced until such precautions have been taken as will
     ensure that the welding, cutting or heating can be
     performed in safety.10



powder-actuated tools or similar fire-producing operations”).
     9
      A “Marine Chemist” is “an individual who possesses a current
Marine Chemist Certificate issued by the National Fire Protection
Association.” 29 C.F.R. § 1915.11(b).
     10
       Part 1915.53 is titled “Welding, cutting and heating in way
of preservative coatings,” and § 1915.53(a) explains that “this
section shall apply to all ship repairing, shipbuilding and
shipbreaking operations except for paragraphs (e) and (f) of this
section which shall apply to ship repairing and shipbuilding and
shall not apply to shipbreaking.”

                                 5
Although Trinity did not have a Marine Chemist check the atmosphere

inside the transoms, Michael Slavings, who is a “competent person,”

did do so.11

     The OSH Act regulation addressing the preemption of a specific

regulation over a general one is 29 C.F.R. § 1910.5(c):

     (1) If a particular standard is specifically applicable
     to a condition, practice, means, method, operation, or
     process, it shall prevail over any different general
     standard which might otherwise be applicable to the same
     condition, practice, means, method, operation, or
     process.

     (2)    On the other hand, any standard shall apply
     according to its terms to any employment and place of
     employment in any industry, even though particular
     standards are also prescribed for the industry, as in
     subpart B or subpart R of this part, to the extent that
     none of such particular standards applies.

Circuit courts have interpreted § 1910.5(c) to mean that a general

standard applies unless another standard is specifically applicable

to the same hazard.12 If, however, the particular standard does not

specifically apply to the hazard in question, then § 1910.5(c)(2)

comes into play, and the general safety standard, “essentially

‘complement[s] the specific safety standards ... by filling the

interstices necessarily remaining after the promulgation of the

     11
       A “competent person” is defined in 29 C.F.R. § 1915.4(o).
Section 1915.7(c) prescribes the skills and knowledge a “competent
person” must have.
     12
        See, e.g., Brock v. L.R. Willson & Sons, Inc., 773 F.2d
1377, 1380-81 (D.C. Cir. 1985); Donovan v. Adams Steel Erection,
Inc., 766 F.2d 804, 807-09 (3d Cir. 1985). See also Peterson Bros.
Steel Erection Co. v. Reich, 26 F.3d 573, 577 (5th Cir. 1994)
(noting, without expressly adopting, the Brock and Donovan standard
for preemption).

                                6
specific    standard[].’”13    In   other   words,   whether   a   specific

standard complements a general standard or preempts it depends on

whether the two regulations address precisely the same hazard.

     Trinity insists that both § 1915.53 and § 1915.14(a)(1)(i)

target the same hazard —— namely, the presence of explosive vapors

prior to the commencement of hot work in spaces covered by a

preservative.    If both standards apply, the same space has to be

tested by both a Marine Chemist and a competent person.            Having a

Marine Chemist gauge the vapors instead of or in addition to a

competent person, contends Trinity, adds no additional protection

because the newly-constructed barges at issue have never contained

any cargo, much less cargo of unknown properties requiring the

special skills of a Marine Chemist.

     Trinity’s interpretation that, for barges that have never

contained    cargo,   §   1915.53   targets   the    same   hazard   as   §

1915.14(a)(1)(i), is not unreasonable.        But we are constrained by

the specified standard of review and must defer to the Review

Commission’s interpretation of the regulations as long as it is

reasonable.14   The Review Commission determined that § 19.53 and §

1915.14(a)(1)(i) did not address the same hazard because the latter

regulation requires marine chemist certification to ensure that an

area was not only clear of gases generated by preservatives, but


     13
          Donovan, 766 F.2d at 808.
     14
          See Martin, 499 U.S. at 151.

                                    7
also free of a wider range of fire hazards.      Under Trinity Marine,

even if Trinity’s proffered interpretation is the more reasonable

one, the deference commanded by our standard of review requires

affirmance of the Review Commission’s decision.           We therefore

affirm the Review Commission’s preemption decision.

2.   Inapplicable By Its Own Terms

     The     second   challenge   Trinity   advances   against   the   §

1915.14(a)(1)(i) citation is that, by its own terms, it does not

apply to the facts of this case.        In particular, the text of the

regulation requires Marine Chemist testing and certification of

spaces “[w]ithin, on or immediately adjacent to spaces that contain

or have contained combustible or flammable liquids or gases.”15

Relying on the prior version of § 1915.14(a)(1)(i) and some of its

legislative history, Trinity argues that the words “have contained”

must be interpreted to mean “have carried as cargo.”      Although the

spaces inside the transoms never contained flammable liquid or gas

cargo, the Review Commission nevertheless affirmed the charge

because the “the transoms of Barge B-133 clearly contained Stoddard

solvent vapors, the gas produced during Tectyl’s curing process.”16

Although Trinity has advanced a reasonable interpretation of §

1915.14(a)(1)(i) that is supported by the regulation’s plain text,

the Review Commission’s interpretation and application is not


     15
          § 1915.14(a)(1)(i) (emphasis added).
     16
          2002 O.S.H.D. (CCH) ¶ 32,666, at *4.

                                    8
unreasonable.     Therefore, Trinity Marine requires us to affirm the

citation.

C.   ITEM 2G: VIOLATION   OF   § 1915.15(E)

     By     cross-petition,       the   Secretary       challenges     the   Review

Commission’s vacature of the citation charging Trinity with failing

to maintain safe conditions in violation of § 1915.15(e).                    Section

1915.15(e) requires testing “to maintain a competent person’s

findings”:

     After a competent person has conducted a visual
     inspection and tests required in §§ 1915.12, 1915.13, and
     1915.14 of this part and determined a space to be safe
     for an employee to enter, he or she shall continue to
     test and visually inspect spaces as often as necessary to
     ensure that the required atmospheric conditions within
     the tested space are maintained.17

The Secretary asserts that Trinity violated this provision because

the welding could have altered conditions in the transoms,18 and

Trinity did not have a competent person retest the bulkheads of the

barge     “as   often   as     necessary       to   ensure   that    the   required

atmospheric conditions within the space are maintained.”19

     The key issue is whether § 1915.15(e)’s requirement that an

employer “continue to test ... as often as necessary” means that



     17
          29 C.F.R. § 1915.15(e) (emphasis added).
     18
        Importantly, the Secretary does not allege that the
atmospheric conditions in the transoms actually changed because of
the welding. Instead, because they might have changed, argues the
Secretary, Trinity’s failure to retest the atmospheric conditions
was a willful violation of § 1915.15(e).
     19
          See 2002 O.S.H.D. (CCH) ¶ 32,666, at *11.

                                           9
Trinity was obligated to perform some additional testing above and

beyond    the   initial   test    performed     by    its   competent   person.

Although we must defer to the Secretary to the extent that its

interpretation conflicts with that of the Review Commission,20 the

Secretary does not offer an interpretation that is reasonable in

light of the language of the regulation.             Section 1915.15(e)’s use

of the language “as often as necessary” hinges on the professional

judgement of the competent person.              And, it would be perfectly

sensible for a competent person to determine that no additional

testing is “necessary.”          We therefore must deny the Secretary’s

cross-petition seeking reinstatement of the § 1915.15(e) citation.

D.   ITEM 6A: § 1915.52(A)(2): WILLFUL     OR   SERIOUS

     Finally, the Secretary contends that the Review Commission

erred in downgrading the characterization of the Item 6a citation,

based on § 1915.52(a)(2), from “willful” to “serious.”21                The OSH

Act authorizes its most severe civil penalties for an employer who

“willfully” violates a health or safety standard.22 The regulation

in question relates to fire prevention measures for hot work:

     If the object to be welded, cut or heated cannot be moved
     and if all the fire hazards including combustible cargoes
     cannot be removed, positive means shall be taken to
     confine the heat, sparks, and slag, and to protect the




     20
          Martin, 499 U.S. at 151.
     21
          See 2002 O.S.H.D. (CCH) ¶ 32,666, at *21.
     22
          29 U.S.C. § 666(a).

                                      10
     immovable fire hazards from them.23

The Review Commission affirmed this citation Item as a “serious”

violation    because    Trinity         had    not   installed     fire    restraint

tarpaulins under the welding to prevent sparks from falling onto

the Tectyl-coated floor of the transom, and Trinity’s own competent

person had recognized the need for tarpaulins or shields.24

1.   Defining “Willful” Violation

     The OSH Act does not itself define “willful.”                  But Trinity and

the Secretary generally agree that, for OSHA purposes, “a willful

violation as one involving voluntary action, done either with an

intentional      disregard        of,    or     plain    indifference       to,      the

requirements of the statute.”25               A company’s “indifference to OSHA

requirements, coupled with its disregard for the safety of its

employees, support[] a finding of a willful violation of the OSHA

regulation.”26    Recently, in A.E. Staley Mfg. Co. v. Secretary of

Labor, the D.C. Circuit agreed with the Secretary that a showing of

“plain    indifference”      to    a    violation       of   the   OSH    Act   is    an

alternative to “knowing or voluntary disregard” (also referred to

     23
          29 C.F.R. § 1915.52(a)(2) (emphasis added).
     24
          2002 O.S.H.D. (CCH) ¶ 32,666, at *17 & n.21.
     25
       Georgia Elec. Co. v. Marshall, 595 F.2d 309, 318 (5th Cir.
1979). In contrast, to prove a “serious” violation, the Secretary
must show only “the presence of a ‘substantial probability’ that a
particular violation could result in death or serious physical
harm. Whether the employer intended to violate an OSHA standard is
irrelevant.” Id.
     26
          Id. at 319.

                                          11
as “conscious disregard”); thus, willfulness can be inferred from

evidence of plain indifference without direct evidence that the

employer knew of each individual violation.27            At the same time,

though, “[a] company cannot be found to have willfully violated a

standard if it exhibited a good faith, reasonable belief that its

conduct conformed to law, or if it made a good faith effort to

comply with a standard or eliminate a hazard.”28

2.   The Evidence

     Here, the Review Commission reversed the ALJ’s conclusion that

Trinity’s     violation   of    §   1915.52(a)(2)’s       fire   prevention

requirement was willful.        The Review Commission did so after

finding no evidence that the entry supervisor who authorized the

violation,    Rodney   Quinn,   knew    that   his   action   violated   OSHA

standards, or that he was “indifferent to the safety of his welding

crew.”29    This conclusion was grounded in the fact that, although

Trinity failed to use fire restraint tarpaulins to prevent sparks

     27
          295 F.3d 1341, 1351, 1353 (D.C. Cir. 2002).
     28
       American Wrecking Corp. v. Secretary of Labor, 351 F.3d
1254, 1263 (D.C. Cir. 2003) (citations omitted). See also id. at
1264 (“Mere negligence or lack of diligence is not sufficient to
establish an employer’s intentional disregard for or heightened
awareness of a violation.”).
     29
        2002 O.S.H.D. (CCH) ¶ 32,666, at *20 (“[T]here is no
evidence that entry supervisor Rodney Quinn knew that welding
without tarpaulins, drapes, or shields was in violation of OSHA
standards. We also find no evidence that Quinn was indifferent to
the safety of his welding crew. Quinn testified that crew members
equipped   themselves   with  blowers,   respirators,   and   fire
extinguishers before they entered Barge B-133 and that each welder
was paired with a fire watch.”).

                                       12
from    falling     onto    the   Tectyl-coated        floor   of    the   transoms,

Trinity’s welding crew employed alternate means —— including the

use of ventilators, respirators, and fire extinguishers, as well as

the pairing of each welder with a fire watch —— to protect

themselves from the fire hazards.                    The Secretary nevertheless

asserts that these were measures required by separate OSH Act

regulations, so they cannot shield Trinity from being in willful

violation of § 1915.52(a)(2)’s mandates.

3.     The Secretary Has Not Met Her Burden

       Although it is true that, as Trinity acknowledged, it did not

use fire restraint tarpaulins, for the Secretary to prevail on the

plain indifference theory, she had to show that Trinity (1) was

indifferent to OSH Act requirements and (2) disregarded the safety

of its employees.30          We are bound by the Review Commission’s

findings      of   fact    because   they      are    supported     by   substantial

evidence. The Secretary has not shown that Trinity disregarded the

safety of its employees, and nothing in the record supports a

finding that Trinity acted in bad faith.31                 We therefore find no

reversible error in the Review Commission’s affirmation of the §

1915.52(a)(2) citation as a serious violation rather than a willful

one.

                                  III.   CONCLUSION


       30
            Georgia Elec. Co., 595 F.2d at 319.
       31
            See American Wrecking, 351 F.3d at 1263-64.

                                          13
     For the foregoing reasons, Trinity’s and the Secretary’s

petitions for review are DENIED.




                               14
