	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
__________________________________________
No. 99-60171
_________________________________________
TRINITY INDUSTRIES, INC.

Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; ALEXIS M.
HERMAN, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
__________________________________________
Petition for Review of an Order of the
Occupational Safety and Health Review Commission
__________________________________________
March 23, 2000
Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
BACKGROUND
Trinity Industries operates plants that manufacture and repair railcars. Trinity also "lines"
new "hopper" railcars by spraying their insides with a chemical coating designed to seal and
protect the interior of a railcar. Absent proper ventilation, this lining process has the potential to
create a hazardous atmosphere inside the railcar. A hazardous atmosphere is defined as one that
is oxygen deficient or which contains toxic levels of a hazardous gas or dust of flammable vapors
in excess of ten percent of the lower flammable limit (LFL) or lower explosive limit (LEL). See
29 CFR 1910.146(d). At issue in this case are citations issued against Trinity based on an OSHA
inspector's finding that the atmosphere inside at least one of Trinity's railcars exceeded ten
percent of the LEL during the lining process.
Trinity designed a ventilation system to prevent the build up of a hazardous atmosphere,

consisting of a ventilation duct on top of the railcar which pulls air out of the railcar, thus forcing
fresh air to be drawn into the railcar through its bottom opening. The entire process exchanges all
of the air in the railcar with air from outside the railcar every minute.
Railcars are "confined spaces" per OSHA regulations. OSHA's standard for employee
entry into confined spaces governs work activities in confined spaces. See 29 C.F.R. § 1910.146.
A confined space is "permit required" if it contains, or has the potential to contain, a hazardous
atmosphere. Permit required spaces are generally governed by § 1910.146(d), which requires
numerous compliance procedures. Subpart (c), however, allows alternative methods of
compliance if the confined space only contains a "potentially hazardous atmosphere," and if
continuous ventilation alone is sufficient to maintain safe conditions. According to Trinity, if
subpart (c) applies, the employer need not comply with the costly and time consuming
requirements set forth in subpart (d).
Over a ten year period ending with his departure from the company, Trinity's former
corporate and environmental director, Jerry Riddles, tested the inside of more than a thousand
railcars during the actual lining operation while the cars were ventilated. The levels of
combustible and toxic vapors inside the railcars were tested with direct reading instruments placed
inside the railcars. During this testing, Riddles never received a reading above ten percent of the
LEL no matter which lining material was used. Based on this testing, Trinity concluded that its
railcar lining operation was governed by subpart (c) rather than by subpart (d), and that its
ventilation system maintained safe conditions inside the railcars during the lining operations.
The alleged violation in this case occurred at a plant in Bessemer, Alabama. Riddles
tested about sixty cars at this plant as part of his ten year program. The Bessemer plant safety
directors also tested the cars periodically and found no hazardous atmosphere inside the cars
during the lining process. However, during a subsequent OSHA inspection, an inspector detected
levels of flammable vapor at 24-26% percent of the LEL. Notably, all of his measurements were
taken from outside the railcar. Apparently, the reading instruments were placed at the opening at
2

the bottom of the railcar where outside air is pulled in, presumably measuring the air being pulled
into the car rather than directly measuring the air in the car. The inspector conceded that these
readings did not tell him "the actual concentrations inside the hopper car." Trinity suggested that
open paint cans in the area may have been the source for the high readings outside of the railcar,
but denied that the readings were evidence of concentrations inside the railcar.
Based on these readings from outside the railcar, the Secretary of Labor found that there
was a hazardous atmosphere inside the railcars despite Trinity's ventilation system and thus the
railcars were governed by subpart (d). Trinity was cited for, inter alia, failure to comply with
subpart (d).
Trinity appealed the citation to an Administrative Law Judge (ALJ) who noted that there
was "no evidence to dispute Trinity's claim that, under usual conditions, the ventilation system
maintained flammable vapors below ten percent of the LEL," but concluded that the OSHA test
established the existence of a hazardous atmosphere at the time of the inspection and therefore
that the lining operation did not qualify for the subpart(c) exception.
Trinity then petitioned the Commission for review on the grounds that the ALJ's decision
was inconsistent and illogical, and that the ALJ had affirmed the confined space citation without
requiring the secretary to prove that Trinity knew or should have known of the violations. On
review, the Commission held that the inspector's tests showed at least a "potential" for the
atmosphere inside the cars to be hazardous when ventilated. The Commission also held that
Trinity was not eligible for the subpart (c) exception and affirmed the citations as violations of
subpart (d). Notably, the Commission declined to consider the knowledge issue, finding that it
need not be addressed since it was not raised in the petition for review. On appeal, Trinity argues
that even if there was a hazardous atmosphere inside the railcar (or the potential for one), there is
no basis for finding that Trinity knew or should have known of this condition and thus the
citations must be dismissed.
DISCUSSION
3

I.
Was the knowledge issue preserved for this court's review?
Knowledge is a fundamental element of the Secretary of Labor's burden of proof for
establishing a violation of OSHA regulations. See Carlisle Equipment Co. v. Secretary of Labor,
24 F.3d 790, 792-93 (6th Cir. 1994). However, issues not properly raised before the Commission
may not be considered by this court. See Cleveland Consolidated, Inc. v. OSHRC, 649 F.2d
1160, 1164-65 (5th Cir. Unit B 1981); McGowan v. Marshall, 604 F.2d 885, 890-91 (5th Cir.
1979). The Secretary argues that because Trinity failed to raise the issue of employer knowledge
in its petition for review, and the Commission properly declined to consider it, this court is
foreclosed from doing so.
Though Trinity did not specifically raise the issue of knowledge in its petition for review
before the Commission, it did raise it in its brief to the Commission. The Commission's decision
noted that while it had the discretion to consider the knowledge issue, it would normally only
consider issues stated in the petition for review or in a later order. We find that the knowledge
issue was properly preserved for our review in this case where the Commission was clearly aware
of the knowledge issue and where the knowledge issue constituted a fundamental element of the
Secretary's burden of proof. To hold otherwise would place form above purpose, especially
considering that the knowledge issue is a fundamental element of the secretary's burden of proof.
The rationale behind not allowing this court to review issues not raised before the Commission is
to give the Commission a chance to pass on issues before this court reviews the administrative
process. See Brown & Root v. OSHRC and Donovan, 659 F.2d 1291, 1293-94 (5th Cir. 1981).
In this case, the Commission had a chance to pass on the knowledge issue. See id. (holding that
where an issue is evident from the administrative record, Court of Appeals, in reviewing an order
of the Occupational Safety and Health Review Commission, will retain jurisdiction to consider the
issue on appeal notwithstanding the failure to specifically address issue in petition for review.)
II.
The knowledge element
Since the Commission declined to address the issue of knowledge, we will conduct de
4

novo review of whether the evidence of knowledge is sufficient to sustain the violation. To prove
the knowledge element of its burden, the Secretary must show that the employer knew of, or with
exercise of reasonable diligence could have known of the non-complying condition. See Secretary
of Labor v. Milliken & Co., 14 OSHC 2079, 2083 (Rev. Comm. 1991), aff'd, 947 F.2d 1483
(11th Cir. 1991). When the Secretary alleges that a contaminant is present in impermissible
levels, but the employer shows that it had made measurements and determined that the
concentration was not excessive, the burden is on the Secretary to show that the employer's
failure to discover the excessive concentration resulted from a failure to exercise reasonable
diligence. Id. Thus, in this case, the Secretary must show that Trinity knew or should have
known that its ventilation was not maintaining an atmosphere below ten percent of the LEL
during the lining operation.
Trinity argues that the uncontroverted evidence consists of sworn testimony describing
more than a thousand tests which demonstrated that its ventilation system was maintaining an
atmosphere below ten percent of LEL during the lining operation. These tests were explicitly
credited by the ALJ. The Secretary responds that the OHSA inspection demonstrates that Trinity
was out of compliance on the day in question. Additionally, we note that the Secretary alleges
that there are issues over the documentation of the tests on which Trinity relied, worker
imperfection in maintaining the ventilation system, and general sloppiness, all of which are alleged
to demonstrate a lack of reasonable diligence on Trinity's part. However, the most thorough
evidence of the vapor levels remains the extensive testing conducted by Trinity as described by
sworn testimony of the railroad safety experts who conducted the tests. On the basis of this
evidence, we find that the Secretary failed in its burden of proving that Trinity knew or should
have known that the levels in the railcars were improper. Therefore, we VACATE the citations
issued against Trinity.1
1 We note that the parties briefed the issue whether Trinity's rail car lining operation qualifies
for the "alternative procedures" of subpart (c). However, that is an issue for another day. The
citations at issue here are based on circumstances the presence of a hazardous environment
5

CONCLUSION
The citations issued against Trinity by the Secretary of Labor are hereby VACATED.
inside the railcars which would violate the confined space entry standards of the OSHA
regulations regardless of whether the "alternative procedures" apply. The citations must be
vacated regardless of whether those portions of subpart (c) apply because the record shows that
Trinity did not have reason to know there was a hazardous environment in their rail cars during
the lining operation.
6