Austin Industrial Specialty Services, L.P. v. Occupational Safety & Health Review Commission, 765 F.3d 434

OSHA issued a citation against Austin for five items related to rail car cleaning; ALJ affirmed Item 1 (respiratory hazard identification/evaluation) and Item 3b (training on hydrogen sulfide/chemicals) and vacated the others; Commission denied review; Austin challenged on appeal.
Austin, a subcontractor at Lubrizol’s Deer Park chemical plant, employed ~166 workers performing rail car cleaning; work began with opening manways, sometimes by Austin employees, and involved a spit test and steam cleaning with Lubrizol oversight.
No MSDS provided at toolbox meetings; employees lacked training on specific chemicals, though a system allowed obtaining MSDS from Lubrizol; a tank car wash record listed chemical codes without direct chemical names; a JSA listed hazards but did not cover all potential hazards.
Over months, ~200 chemicals moved through the facility; workers wore hydrogen sulfide monitors but did not wear respiratory protection; the Godines incident prompted OSHA’s investigation.
Austin argued preemption by LIA/FRA/FRSA, lack of fair notice through VPP, and statute of limitations; the court upheld ALJ’s determinations on Item 1 and Item 3b, and rejected preemption/fair notice/limitations challenges.
The court applied substantial evidence review to the ALJ’s findings, affirmed on the sufficiency of evidence for Item 1 and Item 3b, and denied Austin’s petition for review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
OSHA preemption applies?	OSHA is preempted by LIA/FRA/FRSA.	No exercise of authority by FRA/LIA/FRSA over the specific working conditions.	Preemption not shown; OSHA not animating conflict.
Fair notice via VPP defense?	VPP approval gave fair notice that practices were acceptable.	VPP findings did not address rail car cleaning area; no explicit approval of the specific violations.	No fair notice; VPP did not foreclose § 1910.134(d)(1)(iii) or § 1910.1200(h)(3).
Statute of limitations defense?	Violations occurred within six months of discovery; continuing obligation.	Violation occurrence did not occur on a specific date; six-month window applied to discovery of violation.	Not barred by statute; investigation commenced within six months of the death.
Sufficiency – Item 1 identification/evaluation (respiratory hazards)?	Evidence showed no employee exposure evaluation; MSDS not provided; no chemical-by-chemical hazard estimation.	Monitors and administrative controls do not constitute an evaluation required by § 1910.134(d)(1)(iii).	Substantial evidence supports the ALJ’s affirmance of Item 1.
Sufficiency – Item 3b training on chemicals?	Employees not trained on 200+ chemicals; mere MSDS access insufficient.	Hydrogen sulfide monitoring and confined-space practices were not training under § 1910.1200(h)(3).	Substantial evidence supports the ALJ’s affirmance of Item 3b.

Trinity Marine Nashville, Inc. v. Occupational Safety & Health Review Comm’n, 275 F.3d 423 (5th Cir. 2001) (substantial evidence standard governs agency findings; different de novo result not required)
Consolo v. Federal Maritime Commission, 383 U.S. 607 (U.S. 1966) (substantial evidence standard for agency findings)
Fluor Daniel v. Occupational Safety & Health Review Comm’n, 295 F.3d 1232 (11th Cir. 2002) (VPP; lack of explicit approval does not foreclose enforcement)
Velasquez v. Southern Pacific Transportation Co., 734 F.2d 216 (5th Cir. 1984) (FRA policy statement; limits of preemption analysis)
Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235 (U.S. 2002) (preemption requires affirmative regulation by federal agency)