1 

# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT



## No. 22

- 1226 September Term, 2022

F ILED O N : J UNE 23, 2023

R IVERDALE M ILLS C ORPORATION

, P ETITIONER

v.

S ECRETARY OF L ABOR

, R ESPONDENT

On Petition for Review of a Final Order of the Occupational Safety & Health Review Commission

Before: H ENDERSON

, K ATSAS and W ALKER

, Circuit Judges

J U D G M E N T

This case came before us on a petition for review of a Final Order of the Occupational Safety and Health Review Commission. We considered the appeal on the record before the

Commission an d the briefs and arguments of the parties. After considering the issues, we have determined that a published opinion is u nnecessary. See D.C. Cir. R. 36(d).

We DENY the petition for review.

* * *

From its plant in Massachusetts, Riverdale Mills Corporation manufactures welded wire mesh products. T o make its PVC

- coated mesh, it dip s wire mesh in PVC coating. After that, the

mesh is rolled and cut by a series of machines.

In April 2019, that process went awry. As an employee tried to adjust the mesh

, a machine caught his right arm . It broke his bones and pulled off his skin.

Following the injury

, the Occupational Safety and Health Administration investigated. It

cited Riverdale for failing to comply with the lockout/tagout standard . That standard helps ensure2 that machine s are properly shut down and rendered inoperative befo re maintenance is performed

on them.

When a Riverdale employee later complained about exposure to hazardous chemicals,

OSHA investigated again , resulting in a second and third citation against Riverdale. The second alleged that Riverdale had failed to ad equately train employees about hazardous chemicals. The

third citation alleged that Riverdale failed to comply with a request to make its safety data sheets readily available

.

An administrative law judge issued an order affirm ing all three citations. T he Occupational Safety and Health Review Commission then denied Riverdale’s petition for discretionary review

. Riverdale timely petitioned this court for review.

We review the ALJ’s decision under the substantial evidence standard

. American Wrecking Cor p. v. Secretary of Labor , 351 F.3d 1254, 1261 (D.C. Cir. 2003). We will uphold the

order when it is supported by “such relevant evidence as a reasonable mind might accept as adequate to support [the] conclusion[s].” Consolo v. Fed eral Maritime Commission , 383 U.S. 607, 620 (1966) (cleaned up).

Here, substantial evidence supports the ALJ’s order.

I. Substantial Evidence Shows that Riverdale Violated the Lockout/Tagout Standard

In its first citation, OSHA said Riverdale failed to conduct a periodic inspection of the lockout/tagout procedure for the “Big Spindle.” JA Vol. 1 at 30. That inspection is required “at least annually” by 29 C.F.R. § 1910.147(c)(6)

. For Riverdale’s failure to conduct the inspection

to constitut e a serious safety standard violation, there must be “employee access to the violative

condition s, ” among other requirements. AJP Construction, Inc. v. Secretary of Labor , 357 F.3d 70, 71 (D.C. Cir. 2004). * So in other words, an employee with authority to do so must have applied lockout/tagout to the Big Spindle without Riverdale having inspected his application thereof within the past year.

Here, s ubstantial evidence shows that a maintenance supervisor named Tom Borden had

access to that violative condition

. He said he performed lockout/tagout procedures on “C

- spindle”

in 2019. JA Vol. 3 at 128. And he testified that “ Riverdale had never, in the cumulative nine years he worked at the facility, performed a periodic inspection with him, e ither as a mechanic or a supervisor.” JA Vol. 1 at 33.

* To establish a serious occupational safety standard violation

— or a health standard violation

— the Secretary of Labor must prove four elements: (1) “the applicability of the cited standard;” (2) “the employer’s noncompliance with the standard’s terms;” (3) “employee access to the violative conditions;” (4) “the employer’s actual or constructive knowledge of the violation.” AJP Cons truction, Inc. , 357 F.3d at 71.3 Riverdale ’s main argument is that Borden did not have access to the violative condition

because there was no proof that the “Big Spindle” identified in OSHA’s first citation is the same spindle as the “C

- spindle” mentioned by Borden

.

But there is substantial evidence that the Big Spindle is the C

- Spindle. For starters, Borde n said the “C [

- ] Spindle” refers to the “[c]oating line spindle.” JA Vol. 2 at 219. And the coating

line feeds mesh only to the biggest of the three spindles near it. See JA Vol. 2 at 491 (photograph)

. So Borde n was probably referring to the spindle directly connected to the coating line (the Big Spin dle ) when he talked about locking out the “C [

- ] Spindle.” JA Vol. 2 at 219. Plus, Borden

seemed to refer somewhat interchangeably to the Big Spindle and the C

- Spindle . For example, when referring to the C

- Spindle, he said he locked it out with a procedur e that applied to the “ B ig spindle coating line.” JA Vol. 2 at 220

.

When that evidence is taken together, a “reasonable mind ” can conclude that the Big Spindle is the C

- Spindle. Consolo , 383 U.S. at 620.

I I

. Substantial Evidence Shows that Riverdale Violated Two Hazard Communication

Standard s

When employees are potentially exposed to hazardous chemicals in their work area

, 29 C.F.R. § 1910.1200(h)(1) requires an employer to provide protective training.

Her e, an employee named Luis Trinidad said he had not received any training on hazardous

chemicals. Riverdale knew there were hazardous chemicals in Trinidad’s workspace. So

s ubstantial evidence suggests Riverdale failed to “provide employees with effective information and training on hazardous chemicals in their work area at the time of their initial assignment.” Id.

In addition, 29 C.F.R. § 1910.1200 (g)(11) requires employers to make safety data sheets

available when designated representatives request them. But in this case, when a designated representative requested safety data sheets for “any [chemical] not already provided,” Riverdale provided only some of the requested sheets. JA Vol. 3 at 169.

Riverdale argues that the safety data sheet request could “only be understood as requesting [ safety data sheets ] applicable to possible air contaminants

, ” which Riverdale provided. Pet. Br.

22. But the request for safety data sheets was for “any not already provided

. ” JA Vol. 3 at 169.

A nd because that statement was made during a tour that included the coating line and galvanizing line, Riverdale was required to produce safety data sheets for all chemicals us ed in the coating line and galvanizing line

— not just possible air contaminants . Riverdale’s failure to do so violated 29

C.F.R. § 1910.1200(g)(11).

* * *

Because all three citations were supported by substantial evidence, w e DENY the petition

for re view.4 * * *

This disposition is unpublished. See D.C. Cir. R. 36(d). We direct the Clerk to withhold this mandate until seven days after resolution of a timely petition for panel or en banc rehearing.

See Fed. R. App. P. 41(b); D.C. Cir. R. 41(a)(1).

Per Curiam

FOR THE COURT: Mark J. Langer, Clerk

BY: /s/ Daniel J. Reidy Deputy Clerk