MILLARD REFRIGERATED SERVICES, INC., Petitioner v. SECRETARY OF LABOR, Respondent.
No. 12-1244.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 8, 2013. Decided June 7, 2013.
892
Ronald J. Gottlieb, Attorney, U.S. Department of Labor, argued the cause for respondent. With him on the brief were Joseph M. Woodward, Associate Solicitor and Heather R. Phillips, Counsel for Appellate Litigation. Charles F. James, Attorney, entered an appearance.
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge:
In August 2010, more than 30,000 pounds of anhydrous ammonia escaped from one of the petitioner‘s refrigerated storage facilities. After an investigation, the Occupational Safety and Health Administration cited the petitioner for committing violations of emergency response, training, record-keeping, and other requirements. The Occupational Safety and Health Review Commission affirmed the citations, and the petitioner now seeks review in this court. Concluding that the petitioner‘s challenges are without merit, we deny the petition for review.
I
Anhydrous ammonia (NH3) is a corrosive chemical that can burn the eyes and skin and, when inhaled, can damage the nose, throat, and lungs. At sufficient levels of exposure, anhydrous ammonia can kill a person almost immediately. For these reasons, the Occupational Safety and Health Administration (OSHA) classifies anhydrous ammonia as a “toxic and reactive highly hazardous chemical[ ].”
Millard Refrigerated Services operates a refrigerated storage facility in Theodore, Alabama. The refrigeration system at the Theodore plant uses anhydrous ammonia in quantities that trigger the process safety management regulations found at
On the evening of August 22, 2010, Allen White, the Theodore facility‘s plant engineer, was notified at home that the plant had lost power. White went to the facility and, after the plant regained power, surveyed the refrigeration system. He was unable, however, to get one of its pumps running before he returned home.
The next morning, an employee working on a shipping dock approximately 200 feet from the plant smelled ammonia coming from the facility. Further investigation revealed a strong smell of ammonia in one of the plant‘s freezers and a visible ammonia cloud rising from cracked piping on the plant‘s roof. Two employees under White‘s supervision went to the roof to close the valves that were allowing anhydrous ammonia to enter the leaking segments of piping. Neither employee wore a self-contained breathing apparatus, despite the fact that they came within 15 feet of the ammonia cloud. Nor had either employee been trained in the use of a respirator or in emergency response procedures.
The efforts of White and the other employees succeeded in containing the Au-
On August 24, 2010, after local fire authorities allowed the Theodore plant to reopen, OSHA commenced an inspection. Over the course of multiple visits, OSHA broadened its focus from the August 2010 release to a more comprehensive inspection of the entire plant. At the end of the inspection, OSHA issued two citations for 18 separate regulatory violations. After a hearing, an administrative law judge (ALJ) affirmed as to 13 of those violations, including two regarding process safety management regulations: failure to keep an adequate record of past releases of anhydrous ammonia, in violation of
Millard filed an administrative petition for discretionary review. The Occupational Safety and Health Review Commission denied the petition, noting that the decision of the ALJ thereby became the final order of the Commission. Notice of Final Order at 1 (J.A. 1792). In this court, Millard seeks review of all 13 findings of violations as well as review of the total penalty.
II
We consider Millard‘s challenges under “[f]amiliar principles of administrative law.” A.J. McNulty & Co. v. Sec‘y of Labor, 283 F.3d 328, 331 (D.C. Cir. 2002). “A reviewing court must uphold the factual findings of the Commission if they are ‘supported by substantial evidence on the record considered as a whole,’
A
According to its counsel, Millard‘s “number one issue” on appeal is its challenge to the finding that it violated
In the course of the 2010 inspection, OSHA examined Millard‘s inventory of actual and potential hazards associated with processes that use anhydrous ammonia—the “process hazard analysis” report required by
Before the ALJ, Millard contended that its May 2010 report was adequate because a sentence in the report mentioned a “PHA Addendum.” See PHA Review Certification Letter (May 5, 2010) (J.A. 492). According to Millard, that mention served to incorporate by reference a document labeled “PHA Addendum” that Millard had completed three years earlier, in May 2007, following the 2007 release. PHA Study Team Session Documentation (May 4, 2007) (J.A. 434). The May 2010 report did not indicate that the “Addendum” it referred to was a 2007 document. And the 2007 document contained no description or discussion of the April 2007 release of anhydrous ammonia. Instead, it contained—without explanation or description—a six-digit number, see id., that was also listed at the top of a different internal document describing the April 2007 release, see Incident Investigation (Apr. 25, 2007) (J.A. 426).
The ALJ found that there was “no dispute that the 2007 incident needed to be identified” in the 2010 report because the 2007 incident “‘had a likely potential for catastrophic consequences’ based on the release of 110 pounds of ammonia caused by hydraulic shock under circumstances similar to [the] August 2010 ammonia release.” ALJ Decision at 9 (J.A. 1748). According to the ALJ, the May 2010 report failed to meet the identification requirement because it “contain[ed] no information about the 2007 incident,” and its alleged reference to the May 2007 document was unclear. Id. at 9-10.
There is no dispute that the May 2010 report did not itself mention the 2007 release. Nonetheless, Millard contends that the May 2010 report satisfied
B
Millard‘s “number two” issue on appeal is its challenge to the finding that it violated
Following the August 2010 ammonia leak, OSHA inspectors interviewed White. According to one inspector, they “question[ed] [White] about basic concepts of process safety management.” Hr‘g Tr. at 128 (Aug. 29, 2011) (J.A. 105). Finding that White could not articulate basic concepts and procedures relevant to safely operating an anhydrous ammonia refrigeration system, they issued Millard a citation for violating
Before the ALJ, Millard argued that White‘s inability to recite technical terms on command—without an opportunity to refer to manuals or consult other employees—did not prove he was unfamiliar with safe system operation. Millard also maintained that, at the time of the August 2010 release, the recently-promoted White was still in training, and was under the supervision of a regional engineer who oversaw operations at nine other plants across the southern states.
Drawing on “the OSHA interviews . . . and [White‘s] testimony at hearing,” the ALJ found that White was not merely unable to recall technical details, but was “unable to express or show any understanding of [process safety management]‘s
On review, Millard urges many of the same arguments it raised before the agency. Although we, like the ALJ, take Millard‘s point that White was still in training in August 2010, we note that he had been an operator since 2008 and, by 2010, had been in training for several years. ALJ Decision at 14-15 (J.A. 1753-54). We conclude that there was substantial evidence to support the ALJ‘s findings—in particular, that White did not understand the training he had already received.
Finally, we reject Millard‘s claim that it should be held faultless because it did not know that White did not understand his training. The regulation places the burden to “ascertain that each employee involved in operating a process has received and understood the training required” on the employer.
C
We briefly address one final challenge. During a December 2010 inspection of the Theodore facility, OSHA inspectors noticed 15-foot ladders leading from the roof of the plant to several raised platforms. While the raised platforms were mostly surrounded by guardrails, the openings in the platforms through which the ladders rose were completely open, exposing employees to a 15-foot fall if they stepped through. In February 2011, at the conclusion of their inspection, the inspectors cited Millard for violating
Millard raises a host of challenges to the citation, none of which are availing and only one of which warrants further discussion: Millard‘s contention that OSHA was estopped from issuing the citation. We first note the Supreme Court‘s repeated admonition, “from [its] earliest cases,” that “equitable estoppel will not lie against the Government as it lies against private litigants.” OPM v. Richmond, 496 U.S. 414, 419 (1990) (citing cases). And although the Court has declined to hold that there are no circumstances in which estoppel may run against the government, id. at 423, it has made clear that the bar for succeeding on such a claim is
Millard argues that OSHA was estopped from finding violations in December 2010 because its inspectors had failed to cite Millard for the absence of gates during previous inspections in 2007 and August 2010. But the mere failure to cite Millard previously can hardly be enough to estop later government enforcement. “[U]nless Congress has indicated otherwise,” agencies charged with enforcing the law retain discretion not to prosecute every violation that comes to their attention. Heckler v. Chaney, 470 U.S. 821, 838 (1985). This broad discretion would be considerably constrained if declining to prosecute an offender in one instance by itself prevented an agency from ever demanding that the offender come into compliance. Indeed, if that were the law, an agency like OSHA could preserve its future enforcement authority only by requiring its inspectors to cite every regulated party for every violation discovered during every inspection.
In any event, as the ALJ found, “there is no evidence that the caged ladders or platforms were the subject of prior OSHA inspections or even observed by the OSHA inspectors prior to December 2010.” ALJ Decision at 7 (J.A. 1746). There is certainly “no showing of detrimental reliance by [Millard] or that OSHA misled it regarding the swing gates.” Id. And detrimental reliance is an essential element of any conceivable estoppel defense. See Keating v. FERC, 569 F.3d 427, 434 (D.C. Cir. 2009).
Millard maintains that there is more here than merely a failure to previously cite it for a violation. The company contends that, during the December 2010 inspection, an inspector noted that the ladder openings lacked swinging gates but stated that OSHA would not cite Millard for their absence. Millard Br. 26. Even if the inspector had made such a remark (which is contested), it would not suffice to establish an estoppel defense. In the first place, by drawing Millard‘s attention to the fact that the company was in violation of the regulation, the remark could hardly have lulled Millard into believing that it was in compliance with the law. More important, the citation at issue expressly charged Millard with having failed to provide protection “prior” to the date the inspector allegedly made the remark, including during the period before the December inspection even began. Citation and Notification of Penalty at 6 (J.A. 11). Hence, because Millard could not have relied on the inspector‘s remark in deciding not to provide fall protection, it cannot make out even a traditional defense of estoppel.
III
For the foregoing reasons, the petition for review is
Denied.