FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAR 13, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-11719

________________________

Agency No. 04-1406OSHRC

EMCON/OWT, INC.,

Petitioner,

versus

SECRETARY OF LABOR, THE 

OCCUPATIONAL SAFETY AND

HEALTH REVIEW COMMISSION,

Respondents.

________________________

 Petition for Review of an Order of the

Occupational Safety and Health Review Commission

_________________________

(March 13, 2007)
* Honorable Timothy J. Corrigan, United States District Judge for the Middle District of

Florida, sitting by designation.

2

Before DUBINA and WILSON, Circuit Judges, and CORRIGAN, District Judge. *

PER CURIAM:

On February 15, 2004, one worker died and three others were injured at the

Okeechobee Landfill in Okeechobee, Florida. These workers were employees of

the Petitioner, EMCON/OWT, Inc., which was cited for a “serious” OSHA

violation as a result of this accident. An Administrative Law Judge conducted a

full hearing on the citation and affirmed one of the citation items (Item 3), 29

C.F.R. § 1926.651(k)(1), and assessed a penalty of $6,300.00. The ALJ’s decision

became the final decision of the Occupational Safety and Health Review

Commission (OSHRC). Petitioner seeks review of that decision in this Court. 29

U.S.C. §§ 659(c), 660(a) and 661(j).

“To prove a violation of an OSHA standard, the Secretary [of Labor] must

show by a preponderance of the evidence that (1) the cited standard applies, (2)

there was noncompliance with its terms, (3) employees had access to the violative

conditions, and (4) the cited employer had actual or constructive knowledge of

those conditions.” Southwestern Bell Tele. Co., 19 BNA OSHC 1097, 1098

(OSHRC No. 98-1748, 2000).

The Commission’s decisions are entitled to considerable deference on
3

appellate review. The Occupational Safety and Health Act itself provides “[t]he

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.” 29

U.S.C. § 660(a). “Substantial evidence is more than a scintilla and is such relevant

evidence as a reasonable person would accept as adequate to support a

conclusion.” Fluor Daniel v. Occupational Safety and Health Review Comm’n,

295 F.3d 1232, 1236 (11th Cir. 2002) (citations omitted). “We are mindful that

we do not review the record to draw our own conclusions that we then measure

against an administrative agency; rather, we must consider all of the evidence

when drawing our conclusions about the reasonableness of an agency’s findings of

fact.” Schering-Plough Corp. v. F.T.C., 402 F.3d 1056, 1063 (11th Cir. 2005)

(emphasis added). “Moreover, the legal determinations of an agency like the

OSHRC are to be overturned only if they are arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” Fluor Daniel, 295 F.3d at

1236; 5 U.S.C. § 706(2)(a).

After considering the briefs and hearing record and conducting oral

argument, we find this to be a close case. However, given the deference which

must be accorded the Commission’s decision, we will not disturb it.

AFFIRMED