KS Energy Services v. Hilda Solis
703 F.3d 367
| 7th Cir. | 2012Background
- KS Energy installed a natural-gas pipeline in Madison, WI and was cited by OSHA for a trench-safety violation under 29 C.F.R. § 1926.652(a)(1).
- OSHA concluded the trench was Type B soil, making the permitted slope 45 degrees, and issued a repeat violation based on Morton’s measured slopes of 46, 50, and 46 degrees.
- ALJ upheld the citation on two grounds: the entire trench was Type B and benching in layered soils violated regulations.
- OSHRC initially reviewed then vacated, making the ALJ’s determination final; KS Energy petitioned for judicial review.
- KS Energy argued the lower portion of the trench contained Type A soil, which would allow a 53-degree slope; KS Energy also argued the agency’s benching interpretation was unreasonable.
- The court affirmatively held that substantial evidence supported the soil classification as Type B (independent ground) and did not reach the benching argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether soil in the trench was properly classified as Type B. | KS Energy argues lower trench portion is Type A based on Butler’s tests. | OSHA argues the soil, considering vibration and disturbance, is downgraded to Type B. | Type B supported; substantial evidence |
| Whether the ALJ’s benching ruling in layered soils was necessary to decide. | KS Energy contends benching in layered soils was permissible. | OSHA argues benching prohibition in layered soils; regulation interpretation. | Not reached; dismissal justified by independent Type B soil finding |
Key Cases Cited
- P. Gioioso & Sons, Inc. v. OSHRC, 115 F.3d 100 (1st Cir. 1997) (substantial-evidence standard applies to OSHRC review when not directed by the Commission)
- Union Tank Car Co. v. OSHA, 192 F.3d 701 (7th Cir. 1999) (substantial-evidence standard applies to ALJ findings not reviewed by OSHRC)
- Pierce v. Underwood, 487 U.S. 552 (1988) (definition of substantial evidence; bridge between evidence and result)
- Chao v. Gunite Corp., 442 F.3d 550 (7th Cir. 2006) (requires logical connection between record and outcome)
- J.C. Penney Co. v. NLRB, 123 F.3d 988 (7th Cir. 1997) (standard for agency findings and related review)