Petition for Review of a Final Order of the Occupational
Safety and Health Review Commission (OSHRC Case No. 15-0558)
W. Auman and Douglas Scott Jenks, Dunlevey, Mahan &
Furry, Dayton, Ohio, for Petitioner.
A. Broecker, Attorney (Nicholas C. Geale, Acting Solicitor of
Labor, Ann S. Rosenthal, Associate Solicitor of Labor for
Occupational Safety and Health, and Charles F. James, Counsel
for Appellate Litigation, with him on the brief), United
States Department of Labor, Washington, D.C., for
TYMKOVICH, Chief Judge, HARTZ, and HOLMES, Circuit Judges.
HOLMES, CIRCUIT JUDGE.
H Coatings, L.L.C. ("F & H") seeks review of a
final order of the Occupational Safety and Health Review
Commission ("Commission"), and asks us to set aside
a $7, 000 penalty imposed by an administrative law judge
("ALJ"). The ALJ reviewed evidence presented by the
Department of Labor ("DOL") during a two-day
hearing, and held that the DOL had shown that F & H
breached the General Duty Clause of the Occupational Safety
and Health Act ("OSH Act"), 29 U.S.C. §
review of the record, we conclude that the ALJ's findings
are supported by substantial evidence, see 29 U.S.C.
§ 660(a), and therefore affirm the
Commission's final order.
H is a commercial and industrial painting contractor. F &
H contracted with Boardman L.L.C. ("Boardman"), a
manufacturer of steel pressure vessels and tanks, to
sandblast and paint a number of vessels at Boardman's
manufacturing facility in Wichita, Kansas.
the performance of this contract, a fatal accident at the
Boardman facility took the life of Toney Losey, an employee
of F & H. On September 23, 2014, Mr. Losey and his F
& H supervisor, Robert Patrick, were preparing a 12, 000
pound vessel for sandblasting when the vessel slipped from
its support racks and crushed Mr. Losey. F & H
characterizes this event as a "freakish, unforeseeable,
and still-unexplained accident." Pet.'s Opening Br.
vessel was about fifteen feet long and featured a number of
irregular protrusions-including, notably, a
manway weighing approximately 2, 600 pounds. The
vessel was elevated on a set of pipe racks provided by F
& H before it fell. Boardman positioned the vessel on the
pipe racks with a crane.
did not use pipe racks while manufacturing the vessel.
Instead, Boardman used "rollers," which, according
to the ALJ, "cradle the vessel between two sets of
wheels. . . . As compared to [the] pipe racks, the rollers
maintained four points of contact with the
vessel." Pet.'s App. at 1002-03 (Decision &
Order, dated Nov. 28, 2016) (citations and footnote omitted).
F & H claims that it was impossible to place the vessel
in question in the rollers once legs were attached to the
vessel at the end of the manufacturing process.
Patrick testified that a vessel "couldn't be
off-center" or "too far on one end" of the
pipe racks, and that an unstable vessel would "probably
fall." Pet.'s App. at 151-52, 159 (Tr. Hr'g,
dated Mar. 29, 2016). To ensure that the vessel at issue was
correctly placed on the pipe racks, Mr. Patrick performed a
customary Pre-Work Job Hazard Analysis before the other F
& H employees began working on the vessel. Mr. Patrick
"visually check[ed] [the vessel] and then . . .
purposely tr[ied] to move it" to ensure it was centered
and stable on the pipe racks. Id. at 161. Mr.
Patrick relied entirely upon his experience to assess whether
the vessel was safely supported by the pipe racks, as he took
no objective measurements.
Patrick and Mr. Losey then began preparing the vessel for
sand-blasting. Mr. Losey leaned into the manway to hang
lights inside the vessel, positioning his body halfway inside
the vessel with his feet on the floor. Mr. Patrick testified
that he heard a loud noise, saw the racks "flip
up," and saw the vessel begin to roll off of the racks.
Id. at 168-70. Mr. Losey was partly inside the
vessel when it fell, and was crushed by its weight.
Occupational Safety and Health Administration
("OSHA") learned of the accident the same day, and
sent a Compliance Safety and Health Officer to inspect the
scene. The OSHA officer also interviewed witnesses and
employees of F & H and Boardman. Upon the officer's
recommendation, OSHA issued a citation to F & H on March
17, 2015, for a violation of the General Duty Clause, 29
U.S.C. § 654(a)(1), because F & H's employee was
"exposed to struck-by hazards in that the pressure
vessel was not placed on a work rack which prevented
unintentional movement." Pet.'s App. at 623
(Citation & Notification of Penalty, dated Mar. 17,
H filed a Notice of Contest on March 23, 2015, challenging
"the substance of the citation alleged, the penalty
assessed, and any abatement which might be required."
Id. at 626 (Letter re. Notice of Contest, dated Mar.
23, 2015). The DOL then filed a complaint, seeking
enforcement of the citation by the Commission. F & H
responded to the complaint, denying substantially all of the
DOL's allegations; it asserted twelve affirmative
defenses, including, as relevant on appeal: (1) that the
alleged conditions did not constitute a hazard; (2) that the
alleged hazard was not recognized by the industry or by F
& H; and (3) that F & H had no actual or constructive
knowledge of the alleged hazard.
two-day hearing was held before an ALJ on March 29 and 30,
2016. The ALJ heard extensive testimony from OSHA officials
and individuals who were employees of F & H and Boardman
at the time of the accident. The ALJ also reviewed photos of
the accident scene. In addition, over F & H's
objections, the ALJ permitted the DOL to introduce testimony
by Brian Hope, an officer of a safety and health consulting
company, as "an expert in safety procedures used to
support tanks and vessels during blasting and painting."
Id. at 462 (Tr. Hr.'g, dated Mar. 30, 2016).
Among other things, Mr. Hope testified that other industrial
painting companies do not use pipe racks like those used by F
& H when working with tanks the size of the one that
crushed Mr. Losey. Pipe racks would ordinarily be used
"[t]o support . . . small gauge, lightweight
material" weighing "less than . . . 2[, ]000
pounds." Id. at 471-74. Mr. Hope testified that
placing a 12, 000 pound tank on pipe racks like those used by
F & H would pose a hazard recognized by the industry of
large-tank painters because the pipe racks would not prevent
unintentional lateral movement. Based upon his "personal
view and . . . experience" as well as the resting
position of the fallen tank, Mr. Hope testified that the
placement of the vertical supports and the fact that the
crossbeams were rounded caused the pipe racks to
"[v]eer up and . . . shoot out from underneath the
tank," as the tank rolled off the vertical support,
fell, and continued to roll over Mr. Losey. Id. at
Hope further testified that several feasible methods for
preventing unintentional lateral movement of elevated tanks
exist, including the use of rollers or I-beam material
eight months after the hearing, the ALJ issued a written
order, finding that the accident that killed Mr. Losey
resulted from an obviously hazardous condition of which F
& H was aware. The ALJ entered a decision and order on
November 28, 2016, affirming the citation and the penalty of
$7, 000 assessed by OSHA. The full Commission declined to
undertake discretionary review, and the ALJ's decision
thereafter became the final decision of the Commission.
See Jake's Fireworks Inc. v. Acosta, 893 F.3d
1248, 1252 (10th Cir. 2018); Safeway, Inc. v.
Occupational Safety & Health Review Comm'n, 382
F.3d 1189, 1193 (10th Cir. 2004). F & H appealed directly
to this court.
appeal, F & H argues that the evidence did not support
the ALJ's conclusion that F & H breached the General
Duty Clause. F & H argues, in particular, that the
placement of the pressure vessel on pipe racks did not
constitute a hazardous condition, and that the occurrence of
a "freakish and unforeseeable accident" is not
evidence to the contrary. Pet.'s Opening Br. at 10.
Further, F & H argues (1) that the DOL did not establish
that either F & H or the industry recognized this
condition as a hazard; (2) that the alleged hazard was likely
to cause death or serious physical harm; or (3) that feasible
means existed to abate the hazard.
H also argues that "Mr. Hope's testimony should have
been excluded because he was not qualified to testify as an
expert in this case, and because his opinions were untested,
speculative, and, therefore, unreliable." Id.
Court has jurisdiction to review decisions of the Commission
pursuant to § 11(a) of the OSH Act, 29 U.S.C. §
660(a). Universal Constr. Co. v. Occupational Safety
& Health Review Comm'n, 182 F.3d 726, 728 (10th
review of a final decision of the Commission is governed by
29 U.S.C. § 660(a), which "mandates that the
'findings of the Commission with respect to questions of
fact, if supported by substantial evidence on the record
considered as a whole, shall be conclusive.'"
Slingluff v. Occupational Safety & Health Review
Comm'n, 425 F.3d 861, 866 (10th Cir. 2005) (quoting
Interstate Erectors, Inc. v. Occupational Safety &
Health Review Comm'n, 74 F.3d 223, 226 (10th Cir.
1996) (quoting § 660(a))); see also Tierdael Constr.
Co. v. Occupational Safety & Health Review
Comm'n, 340 F.3d 1110, 1114 (10th Cir. 2003)
("This court reviews the Commission's findings of
fact under a substantial evidence standard upon consideration
of the record as a whole."). "Substantial evidence
is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion, and it must be enough to
justify, if the trial were to a jury, a refusal to direct a
verdict when the conclusion sought to be drawn from it is one
of fact for the jury." Slingluff, 425 F.3d at
866 (quoting Kent Nowlin Constr. Co. v. Occupational
Safety & Health Review Comm'n, 648 F.2d 1278,
1279 (10th Cir. 1981)). "As for factual findings, we do
not reweigh the evidence, second-guess the factual inferences
drawn therefrom, or substitute our judgment on the
credibility of witnesses." Jake's Fireworks
Inc., 893 F.3d at 1257.
"affirm [the Commission's] legal conclusions unless
they are arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law." Safeway,
Inc., 382 F.3d at 1192; see also Jake's
Fireworks Inc., 893 F.3d at 1257 ("Our review under
this standard is narrow and highly deferential to the
agency" (quoting Compass Envtl., Inc. v.
Occupational Safety & Health Review Comm'n, 663
F.3d 1164, 1167 (10th Cir. 2011))).
the ALJ's order in this case became the final order of
the Commission when the Commission declined to review it, we
review the ALJ's order on appeal under the same standard
of review as we would an order actually issued by the
Commission. Jake's Fireworks Inc., 893 F.3d at
1257 n.8; Safeway, Inc., 382 F.3d at 1193.
first address F & H's contention that the ALJ should
not have admitted Mr. Hope's testimony as an expert on
safety procedures used to support tanks and vessels during
blasting and painting. We find no abuse of discretion in the
ALJ's conclusion that Mr. Hope was qualified to offer
such testimony or that his testimony was reliable. We next
review the ALJ's conclusion that F & H violated ...