United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 17, 2002 Decided July 23, 2002

No. 00-1530

A.E. Staley Manufacturing Co.,
Petitioner

v.

Secretary of Labor,
Respondent

On Petition for Review of an Order of the
Occupational Safety and Health Review Commission

Sally J. Scott argued the cause for petitioner. With her on
the briefs was Robert E. Mann.

Scott Glabman, Attorney, U.S. Department of Labor, ar-
gued the cause for respondent. With him on the brief were
Joseph M. Woodward, Associate Solicitor, and Bruce F.
Justh, Counsel.


Before: Edwards, Henderson, and Garland, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: A.E. Staley Manufacturing Com-
pany petitions for review of a final order of the Occupational
Safety and Health Review Commission (OSHRC). The Com-
mission found that Staley committed 89 willful violations of 29
C.F.R. s 1910.307(b) (the "hazardous locations standard"),
which mandates that electrical equipment in hazardous loca-
tions be approved for use in such locations. OSHRC also
concluded that Staley committed two willful violations of 29
C.F.R. s 1910.1200(h) (the "hazard communication stan-
dard"), which requires employers to provide employees with
effective information and training regarding hazardous chemi-
cals in their work areas. Staley does not dispute that it
committed the violations, but contends that the Commission
erred in deeming them willful. Finding no error, we deny the
petition for review.

I

Staley is a corn refiner that produces corn starch, corn oil,
fructose, and dextrose at a number of facilities. This case
concerns Staley's Decatur, Illinois plant. In 1990, the plant
included over 130 buildings and had approximately 833 hourly
employees. In July of that year, the Occupational Safety and
Health Administration (OSHA)1 began an inspection of the

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1 As the Supreme Court has explained, the OSH Act "assigns
distinct regulatory tasks to two different administrative actors":
the Secretary of Labor and OSHRC. Martin v. OSHRC, 499 U.S.
144, 147 (1991). The Secretary, who has delegated certain statuto-
ry duties to OSHA, is responsible for setting and enforcing work-
place health and safety standards. If the Secretary determines
that an employer is not complying with a standard, she is autho-
rized to issue a citation and assess a penalty. 29 U.S.C. ss 658,
659. OSHRC is responsible for "carrying out adjudicatory func-
tions" under the Act. Id. s 651(b)(3). If an employer contests a
citation, an ALJ appointed by the Commission makes an initial
decision, which becomes a final order of the Commission unless it


plant, prompted by a May 1990 accident in which an employee
was fatally asphyxiated. As a result of the inspection, the
Secretary of Labor, acting through OSHA, issued two sets of
citations alleging hundreds of violations of the Occupational
Safety and Health Act ("OSH Act"), 29 U.S.C. ss 651-678.
One set of citations alleged violations of safety standards,
including the hazardous locations standard, 29 C.F.R.
s 1910.307(b). The other set charged violations of health
standards, including the hazard communication standard, id.
s 1910.1200(h), and the asbestos standard, id.
s 1910.1001(j)(2), (k)(1).

Partial settlements led to the withdrawal of all citations for
non-willful violations. Staley contested the remaining 177
safety and four health citations, and the Commission assigned
an Administrative Law Judge (ALJ) to hear the case. The
ALJ upheld 171 of the safety citations and all four of the
health citations. However, he concluded that only 87 of the
safety violations (all for hazardous locations) and two of the
health violations (both for asbestos) were willful. He found
the remaining violations, including the two violations of the
hazard communication standard, to be serious but not willful.2
Both parties appealed the ALJ's decision to OSHRC.

The Commission affirmed all of the ALJ's findings of
violations, as well as all of his findings of willfulness. In
addition, it upgraded several violations from serious to willful,
including two further hazardous locations violations (making a
total of 89) and the two hazard communication violations
(which it grouped as one for penalty purposes). In finding
willfulness, the Commission relied on evidence that previous

__________
grants discretionary review. Id. s 661(j). Both employers and the
Secretary may seek review of Commission orders in the courts of
appeals. Id. s 660(a), (b).

2 An employer guilty of a "serious" violation of a health or
safety standard "shall be assessed a civil penalty of up to $7,000 for
each such violation." 29 U.S.C. s 666(b). An employer who "will-
fully or repeatedly" violates such a standard, however, "may be
assessed a civil penalty of not more than $70,000 for each violation,
but not less than $5,000 for each willful violation." Id. s 666(a).


dust explosions, internal audits, and a survey by the National
Institute for Occupational Safety and Health had put Staley
on notice of serious safety and health problems, including the
location of non-approved electrical equipment in the vicinity
of combustible dust and a lack of employee training concern-
ing dangerous chemicals. The Commission concluded that
Staley's continued failure to take corrective action in the face
of these widespread problems supported a determination of
willfulness. A.E. Staley Mfg. Co., 19 O.S.H. Cas. (BNA) 1199,
1221-22 (OSHRC 2000). Staley then filed a petition for
review in this court pursuant to section 10(c) of the OSH Act,
29 U.S.C. s 659(c).

II

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," 29 U.S.C. s 660(a), and
must uphold its other conclusions as long as they are not
arbitrary, capricious, an abuse of discretion, or otherwise
contrary to law, 5 U.S.C. s 706(2)(A). See Anthony Crane
Rental, Inc. v. Reich, 70 F.3d 1298, 1302 (D.C. Cir. 1995).
Moreover, "[w]e defer to the Secretary's interpretation of the
Act and regulations, upholding such interpretations so long as
they are consistent with the statutory language and otherwise
reasonable." Id. (citing Martin v. OSHRC, 499 U.S. 144,
150-51 (1991)).

Staley does not contest the Commission's findings that it
committed serious violations of the OSH Act. It disputes
only the findings that the 89 hazardous locations and two
hazard communication violations were willful. In the OSH
Act context, a willful violation is "an act done voluntarily with
either an intentional disregard of, or plain indifference to, the
Act's requirements." Kaspar Wire Works, Inc. v. Secretary
of Labor, 268 F.3d 1123, 1127 (D.C. Cir. 2001) (quoting Conie
Constr., Inc. v. Reich, 73 F.3d 382, 384 (D.C. Cir. 1995)). The
Commission based its findings of willfulness on its determina-
tion that Staley was plainly indifferent to the requirements of
the Act.


Staley argues that the Commission committed two errors in
deeming its violations willful. First, Staley contends that
substantial evidence does not support the Commission's de-
termination that the company was plainly indifferent to its
violations of OSHA standards. Second, with respect to the
hazardous locations standard, Staley maintains that even if
there were evidence of its plain indifference to that standard,
the Commission legally erred in finding willfulness without
finding that the company knew of each specific violation cited
by OSHA. We consider these two arguments in Parts III
and IV below.

III

The Commission found Staley willful because it demon-
strated plain indifference to its violations of the standards
requiring it: (1) to use only approved electrical equipment in
hazardous locations, and (2) to train and inform its employees
regarding hazardous chemicals in their work areas. Staley
maintains that there is an absence of substantial evidence to
support findings of plain indifference with respect to either
standard. We disagree.

A

The 89 violations of the hazardous locations standard, af-
firmed by the Commission and undisputed by Staley, all
involved the presence of non-approved electrical equipment in
Class II, Division 2 locations.3 The equipment at issue
included exposed wiring, bulbs without protective globes, and
improperly sealed junction boxes--all potential ignition

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3 Class II, Division 2 locations include locations where "dust
may be in suspension in the air as a result of infrequent malfunc-
tioning of handling or processing equipment, and dust accumula-
tions resulting therefrom may be ignitible by abnormal operation or
failure of electrical equipment," as well as locations "where dust
accumulations might form on or in the vicinity of electric equip-
ment." 29 C.F.R. s 1910.399.


sources for combustible dust. The evidence of Staley's plain
indifference to those violations is as follows.

In May 1987, Staley conducted a mock OSHA inspection
and found unsafe electrical equipment in places that Staley
considered Class II, Division 2 locations, including the eleva-
tors and Buildings 9, 44, and 75--all places in which OSHA
inspectors subsequently found violations at issue in this case.
Joint Appendix (J.A.) at 325, 327-28, 339. Two years later, in
April 1989, an internal audit conducted by Staley safety
engineer Ken Page turned up more instances of unprotected
electrical equipment in hazardous locations. Page's handwrit-
ten report warned that Building 44 had "literally gone to hell
in a handbasket" and contained "hundreds of safety type
violations." J.A. at 361. Page testified that those violations
included uncovered electrical boxes and exposed wires. Sup-
plemental Appendix (S.A.) at 47-48. He recommended that a
wall-to-wall audit of the plant be conducted as soon as possi-
ble, and noted that Staley's potential liability for OSHA
penalties was very high. J.A. at 361-62.

Page's recommendation for a wall-to-wall audit was not
approved. Page testified that his supervisor, Lynn Elder,
director of Staley's department of environmental sciences and
safety, told Page that he had advised Bob Jansen, corporate
vice president of operations, of Page's findings. Jansen
reportedly replied that he was aware of the problems in the
plant, but that another Staley project had priority. Page also
testified that Elder told him that he should not distribute his
report because "the legal department would crucify us."
Instead, Elder suggested that Page's report be either de-
stroyed, or stamped "privileged and confidential" and sent to
the legal department. Page, however, did not destroy the
report. He kept a copy for himself and gave copies to three
others, including Bob Trent, Decatur's chief of plant protec-
tion, and Jim Brinkmeyer, the corporate industrial hygienist.
Elder did permit Page to make an oral presentation to plant
staff during which he explained his findings in detail. But
Elder assigned another auditor, J.B. Webb, the supervisor of
the Decatur safety department, to revise Page's written re-
port. The revised report substantially toned down Page's


language and omitted references to hundreds of the specific
electrical and safety violations that Page had observed. J.A.
at 363-65; S.A. at 38-43, 51-52.

In May 1989, a major dust explosion and fire occurred at
the Decatur plant. It was not the first: other explosions and
fires had occurred in several buildings over the years. In the
same month, an insurance loss-control report for Building 44
noted open electrical junction boxes, and warned that "[m]ois-
ture, lint, dust and combustible materials can easily come in
contact with the exposed wiring and create a potential igni-
tion." S.A. at 10-11, 56-58. The following year, after the
fatal May 1990 accident, Staley's president instructed Page to
conduct another audit of the plant. Page submitted a report
that identified exposed wires, conduits, breaker boxes, junc-
tion boxes, and bulbs in hazardous locations. The locations
again included the elevators and Buildings 9 and 75. J.A. at
122, 373-74, 390, 417-19; S.A. at 59-67.

Two months later, OSHA conducted the inspection that
resulted in the findings of 89 violations of the hazardous
locations standard. That inspection also revealed that many
of Staley's supervisory personnel were not properly trained
regarding the hazards presented by Class II, Division 2
areas. Some were not even aware that the areas they
supervised were classified locations. Others received no
training on the classification of areas or the requirements for
such areas. For example, Michael Slimbarski, the plant
operations manager, had not been trained concerning the
hazardous locations standard and, with one exception, did not
know which areas of the plant were classified. J.A. at 269-70.
Shift coordinators Gordon Green and Ron Young were also
untrained on the standard and unaware that faulty electrical
equipment could produce dust explosions. J.A. at 283-89,
304-05. Even electricians lacked training regarding the exis-
tence of classified hazardous locations in the plant. S.A. at
183.

We agree with the Commission that the evidence just
recited constitutes substantial evidence that the 89 hazardous
locations violations were part of a pattern or practice of plain


indifference to violations of that standard. A.E. Staley Mfg.
Co., 19 O.S.H. Cas. (BNA) at 1222.4 The series of internal
reports between 1987 and 1990 put Staley on notice of unsafe
electrical equipment in hazardous locations, and of the persis-
tence of that problem over the years covered by those
reports. A series of dust explosions and fires, although not
themselves caused by faulty electrical equipment, also put the
company on heightened notice of the dangers of combustible
dust. Yet despite this notice, the company failed to train its
employees about such hazards, attempted to suppress Page's
internal audit report, and ignored his recommendations for
correction. Within months of Page's last audit, OSHA in-
spectors found the same kinds of unsafe equipment in many
of the same locations that Page did. This evidence is more
than sufficient to sustain the Commission's determination of
willfulness. See, e.g., Caterpillar, Inc. v. OSHRC, 122 F.3d
437, 441 (7th Cir. 1997) (holding that the fact that an employ-
er "rejected or ignored the recommendations of the very
person" it had asked to make safety recommendations showed
plain indifference to employee safety).

Staley's principal attacks on the sufficiency of the evidence
require only brief mention. First, the company contends that
the 89 violations were too few to demonstrate plain indiffer-
ence, as the equipment involved represented only a small
percentage of all of the company's electrical equipment. That
is not an adequate defense. Even a single violation of the
OSH Act may be found willful, regardless of whether the
workplace is otherwise safe. See Kaspar Wire Works, 268
F.3d at 1128 (holding that an employer cannot "contend that
it was entitled to rely on its lack of prior violations to
undermine a finding of willfulness," because then "an employ-
er with no prior citations could choose to violate a regulatory
obligation without risking a finding of willfulness"); Valdak
Corp. v. OSHRC, 73 F.3d 1466, 1469 (8th Cir. 1996).

__________
4 The Commission specifically found that the hazardous loca-
tions violations "have a similar factual basis and are reflective of a
pattern or practice by Staley of ignoring the hazard of explosive
dust." 19 O.S.H. Cas. (BNA) at 1213 n.28.


Staley also argues that Page's report did not heighten its
awareness of safety problems at Decatur because his hand-
written notes were never given to plant staff. As described
above, there is substantial evidence to the contrary: Page
gave his notes to both Bob Trent and Jim Brinkmeyer; they
were read by his supervisor, Lynn Elder; they were orally
reported by Elder to vice president Jansen; and Page re-
counted them in a detailed oral presentation to the staff.
That knowledge is properly imputed to the company. See
Caterpillar, Inc. v. Herman, 154 F.3d 400, 402 (7th Cir. 1998).
Moreover, to the extent that Page's report was not more
widely disseminated, it was only because Elder directed that
it not be distributed, and that a revised report--omitting
references to hundreds of specific violations--be distributed
instead. S.A. at 38-43, 51-52. Such willful blindness is no
defense at all. See United States v. Schnabel, 939 F.2d 197,
203 (4th Cir. 1993).

Finally, Staley argues that the Commission ignored evi-
dence of its good faith efforts to comply with the hazardous
locations standard, pointing specifically to its plant-wide
(joint) safety committee and to the 25 separate departmental
safety committees that were scheduled to meet monthly to
address safety issues. The joint committee, however, lacked
authority to initiate or direct corrective action, while the
departmental safety committees held their meetings only half
the time. S.A. at 115-16. Moreover, the record shows that
many members of the departmental committees were dis-
mayed at Staley's safety program: many resigned because
safety problems were not corrected, meetings were canceled,
and management either did not attend meetings or sent
different managers each month. S.A. at 103-04, 120-21. Far
from being evidence of good faith, then, the record of Staley's
safety committees offers only further evidence of the compa-
ny's plain indifference to its violations of safety standards.

B

Staley also contends that substantial evidence does not
support the Commission's determination that the company
exhibited plain indifference to the two hazard communication


violations. Those violations were: (1) failing to provide haz-
ard communication training for twelve substances (including
silica sand, filteraid,5 asbestos, and feed dust) for which Staley
did not have material safety data sheets (MSDSs);6 and (2)
failing to train employees regarding the meaning of the
hazard communication symbols used on the company's ethy-
lene oxide, propylene oxide, caustic, and sulfuric acid storage
tanks. The evidence of Staley's plain indifference is as
follows.

In November 1988, the Decatur plant's joint health and
safety committee warned of serious deficiencies in Staley's
hazard communication program. In a memorandum, the
committee noted that bags of filteraid were strewn around
and that the material was tracked all over Building 11--one
of the buildings specifically named in OSHA's 1990 hazard
communication citation. The committee further noted that
"[b]uilding personnel need to be trained on the danger of this
product." A.E. Staley Mfg. Co., 19 O.S.H. Cas. (BNA) at
1204; S.A. at 22.

In March 1989, the National Institute for Occupational
Safety and Health (NIOSH) conducted an evaluation of health
hazards at the Decatur plant. NIOSH industrial hygienists
observed that Staley employees were improperly trained with
respect to the hazards of toxic chemicals. NIOSH also found
that employees disregarded an alarm that sounded when
ethylene oxide and propylene oxide leaked into the air, that
they did not have immediately available respirators, and that
they engaged in work practices that increased their exposure
to chemicals. S.A. at 3-5. Following its evaluation, NIOSH

__________
5 Filteraid is the generic name for a filtering material used in
the beverage industry. Staley's filteraid is composed largely of
silica, exposure to which may result in silicosis, a potentially life-
threatening lung disease. See A.E. Staley Mfg. Co., 19 O.S.H. Cas.
(BNA) at 1204 n.10, 1205 n.13.

6 The hazard communication standard requires employers to
make available to their employees MSDSs for hazardous chemicals
in the employees' work areas. 29 C.F.R. s 1910.1200(h)(2)(iii). An
MSDS must contain detailed information about the physical charac-
teristics and health hazards of the chemical. Id. s 1910.1200(g)(2).

sent J.B. Webb, the Decatur safety supervisor, a summary of
its findings:

[W]e feel there is significant potential for chemical over-
exposures in the starch reaction area, and possibly
throughout the starch stream. This appears to be due to
improper work practices, poor management oversight,
and emphasis of production over worker safety. Includ-
ed among the chemicals used in this area are ethylene
oxide, propylene oxide, and vinyl acetate. Ethylene ox-
ide is currently regulated as a cancer hazard by [OSHA].
Propylene oxide is very similar in chemical structure to
ethylene oxide and is currently being evaluated by
NIOSH with regard to potential carcinogenicity.... In
addition, lack of training and demand for product seems
to have circumvented measures which were specifically
implemented to reduce potential exposure.

S.A. at 5.

Ken Page's April 1989 audit disclosed further serious defi-
ciencies in employee training regarding hazardous sub-
stances. Page noted that hazardous chemicals were not
properly labeled, annual training was not being conducted in
several buildings, and employees lacked access to MSDSs.
He also observed large quantities of filteraid on the floor of
two buildings, including Building 11, and continuing problems
with the material in a third. A.E. Staley Mfg. Co., 19 O.S.H.
Cas. (BNA) at 1205; J.A. at 341-45, 347-48, 350-53, 359-60.
A second auditor, Robert Moore, notified his supervisor about
the results of the audit and the presentation Page made to
plant staff:

The staff was told that the Hazard Communications
Compliance, Respiratory Protection Compliance, and
Hazardous Material Control had deteriorated since we
last conducted such a survey (1986). In our opinion, an
OSHA inspection prompted by the NIOSH visit could
potentially result in the assessment of major penalties.

S.A. at 6 (emphasis added).

Notwithstanding these warnings, Staley management told
Page that completing another project had priority over cor-

recting the problems he had identified. A year later, when
Page undertook another audit following the fatal May 1990
accident, he found that containers of hazardous materials
were improperly labeled in two buildings, updated MSDSs
were absent in two buildings, and hazard communication
training had not been conducted for years. Page received no
feedback from Staley regarding his May 1990 report. J.A. at
400, 406, 415; S.A. at 43, 87.

As noted above, when OSHA inspected the plant in July
1990, it cited Staley for failing to train employees regarding
twelve hazardous substances for which Staley did not have
MSDSs, including silica sand, filteraid, asbestos, and feed
dust; and for failing to train employees concerning the sym-
bols used to label the ethylene oxide, propylene oxide, caustic,
and sulfuric acid storage tanks. The inspection found that
many of Staley's managers had received little or no training
about OSHA compliance, and that both managers and hourly
employees were untrained regarding the cited hazardous
chemicals. MSDSs were mostly either unavailable or kept in
locked offices. Of particular concern, employees working in
the vicinity of hazardous chemicals like ethylene oxide and
propylene oxide were untrained in the labeling system and
had no idea what the colors and numbers meant. As a
consequence, they were unaware of the hazards posed by the
chemicals and of how to protect themselves. J.A. at 186-207,
234-40, 277, 298; S.A. at 105-14, 169-86.

We again agree with the Commission that this record
evidence is more than sufficient to sustain its findings that
Staley was plainly indifferent to its violations of the hazard
communication standard. The NIOSH evaluation and inter-
nal surveys and audits gave Staley a heightened awareness of
its hazard communication problems, including problems with
the specific chemicals for which Staley was later cited. Yet,
the company responded unappreciatively to those warnings
and substantially failed to ensure the required training of its
managers and employees. In the Commission's words, "Sta-
ley's HazCom program remained grossly deficient." A.E.
Staley Mfg. Co., 19 O.S.H. Cas. (BNA) at 1205.


Staley seeks to minimize the scope of its failure by noting
that the training violations concerned "only" 15 of 120 build-
ings and 12 of 1200 hazardous materials used at the Decatur
plant. As we have already noted, however, an otherwise safe
workplace does not prevent findings of willfulness with re-
spect to those violations that do occur. Moreover, five of the
chemicals cited in the two health violations--ethylene oxide,
propylene oxide, sulfuric acid, asbestos, and silica--are among
Staley's "mean fifteen" chemicals, the most dangerous in the
plant. All five may produce acute or chronic health effects in
exposed employees. S.A. at 22-23, 88-89; see 29 C.F.R.
s 1910.1200(c). Accordingly, Staley's effort to minimize its
violations of OSHA's health standards is unavailing, and we
conclude that the Commission was justified in describing
Staley's attitude toward its violations as "plain indifference
to[ ] the Act's requirements." Kaspar Wire Works, 268 F.3d
at 1127.

IV

Staley's second major argument is that, even if it was
plainly indifferent to the requirements of the OSH Act, its
violations of the hazardous locations standard were not willful
because it was unaware of the specific conditions for which it
was cited. There is no evidence in the record, Staley notes,
that its management knew of the precise uncovered electrical
boxes and exposed wires discovered by the OSHA inspectors.
Although these conditions were of the same kind and in the
same locations as problems found in earlier internal audits,
Staley stresses that OSHA cannot prove that they were the
same pieces of noncompliant equipment. In the company's
view, "implicit to a finding of willfulness is employer knowl-
edge of the existence of a condition, an awareness that the
condition does not meet the Act's requirements ..., and a
conscious decision not to correct the condition...." Staley
Br. at 14.

Staley offers little support for this position, and we reject
it. The OSH Act authorizes its most severe civil penalties for
any employer who "willfully" violates a health or safety


standard. 29 U.S.C. s 666(a); see supra note 2. The Act
does not itself define "willfully." In its decision below, the
Commission, citing its own precedents, defined a willful viola-
tion as one "committed with intentional, knowing or voluntary
disregard for the requirements of the Act, or with plain
indifference to employee safety." A.E. Staley Mfg. Co., 19
O.S.H. Cas. (BNA) at 1202 (quoting Falcon Steel Co., 16
O.S.H. Cas. (BNA) 1179, 1181 (OSHRC 1993), and A.P.
O'Horo Co., 14 O.S.H. Cas. (BNA) 2004, 2012 (OSHRC 1991))
(emphasis added).7 Under this definition, "plain indifference"
to violations of the Act is an alternative to "knowing or
voluntary disregard" (also referred to as "conscious disre-
gard"), and willfulness can be inferred from evidence of plain
indifference without direct evidence that the employer knew
of each individual violation. See also A.E. Staley Mfg. Co., 19
O.S.H. Cas. (BNA) at 1202 (describing the "state of mind"
required as "conscious disregard or plain indifference for the
safety and health of employees" (citing General Motors, 14
O.S.H. Cas. (BNA) at 2168)).

Staley seeks to undermine the Commission's formulation by
pointing to a definition of "willfully" that this court has often
cited in OSH Act cases: "an act done voluntarily with either
an intentional disregard of, or plain indifference to, the Act's
requirements." Kaspar Wire Works, 268 F.3d at 1127 (quot-
ing Conie Constr., 73 F.3d at 384). Placing great stress on
the location of the word "voluntarily" in the Kaspar Wire
Works formulation, Staley contends that this definition re-
quires that an act be both voluntary and done with plain
indifference to be regarded as willful. Moreover, for a viola-
tion to be "voluntary," Staley insists, the company's manage-
ment must know that the specific piece of equipment at issue
was noncompliant and then must decide not to correct it.

__________
7 Accord Branham Sign Co., 18 O.S.H. Cas. (BNA) 2132, 2134
(OSHRC 2000); Pepperidge Farm Inc., 17 O.S.H. Cas. (BNA) 1993,
1998 (OSHRC 1997); J.A. Jones Constr. Co., 15 O.S.H. Cas. (BNA)
2201, 2209 (OSHRC 1993); General Motors Corp., Electro-Motive
Div., 14 O.S.H. Cas. (BNA) 2064, 2068 (OSHRC 1991).


The Secretary of Labor agrees that Kaspar Wire Works
applies here, but she does not regard its definition of willful
as different from that applied by the Commission. In the
Secretary's view, as in the Commission's, there are two
prongs to the definition: conscious disregard and plain indif-
ference. Only the former requires direct evidence that the
employer knew of the specific noncomplying condition. If
proven, plain indifference substitutes for knowledge of the
specific condition as a means of inferring the employer's
willful intent.

Because the OSH Act is silent as to the meaning of
"willful," we are required to defer to the Secretary's interpre-
tation as long as it is reasonable. Anthony Crane Rental, 70
F.3d at 1302 (citing Martin, 499 U.S. at 150-51). Where "the
Secretary and the Commission agree, there is no question but
that we must accord deference to their joint view." RAG
Cumberland Res. LP v. Federal Mine Safety & Health
Review Comm'n, 272 F.3d 590, 596 (D.C. Cir. 2001) (referring
to a parallel statutory scheme under the Mine Act). We find
that joint view reasonable in this case.

The use of a state of mind like plain indifference as a
substitute for knowledge of a specific condition is well recog-
nized in other legal contexts.8 In Daskalea v. District of
Columbia, for example, this court held that the District of
Columbia was "deliberately indifferent" to, and hence liable
under 42 U.S.C. s 1983 for, its jail guards' sexual abuse of a
female prisoner--even without evidence that District policy-
makers knew of the harassment of the particular prisoner.
227 F.3d 433, 441-43 (D.C. Cir. 2000). In Daskalea, indiffer-
ence was proven by evidence that the District had been on
notice of prior incidents against other prisoners, that similar

__________
8 See, e.g., McGinty v. New York, 193 F.3d 64, 69 (2d Cir. 1999)
(holding that to prove a willful violation of the Age Discrimination in
Employment Act, evidence of "reckless disregard" is an alternative
to evidence of actual knowledge); Saba v. Compagnie Nationale
Air France, 78 F.3d 664, 667 (D.C. Cir. 1996) (holding that "reckless
disregard" is equivalent to "willful misconduct" for purposes of
liability under the Warsaw Convention).


incidents nonetheless continued, and that the District failed to
train or supervise its officers adequately. Id. The parallels
to the evidence of Staley's indifference, as recounted in Part
III above, are obvious.

Staley notes that in many cases under the OSH Act,
employers have been found liable for willful violations where
they "were aware of the requirements of the standard and
the noncompliant condition, but deliberately chose not to
comply with the requirements." Staley Br. at 13 (emphasis
added) (citing Donovan v. Williams Enters., Inc., 744 F.2d
170, 179-80 (D.C. Cir. 1984), and Conie Constr., 73 F.3d 382).
Staley's observation is correct, but nondispositive. The fact
that cases have found willfulness where both kinds of knowl-
edge were proven does not mean that both are required.
Staley points to no case in which, although an employer was
plainly indifferent to compliance with an OSHA standard, a
violation was found non-willful because the employer did not
know of the specific unlawful condition. Indeed, Staley con-
cedes that many OSH Act cases have found violations willful
even without evidence that the employer was aware of the
applicable standard.9 In those cases, plain indifference sub-
stituted for employer knowledge, even though the cases pro-
claimed--as Staley proclaims with respect to knowledge of
conditions--that "there must be evidence that an employer
knew of an applicable standard." Williams Enters., Inc., 13
O.S.H. Cas. (BNA) 1249, 1257 (OSHRC 1987); see id. (stating

__________
9 See Valdak, 73 F.3d at 1269 ("Valdak's claimed ignorance of
the OSHA standard does not negate a finding of willfulness. Will-
fulness can be proved by 'plain indifference' to the Act's require-
ments."); Georgia Elec. Co. v. Marshall, 595 F.2d 309, 320 (5th Cir.
1979) (rejecting the claim that a company "cannot be held liable for
willfully violating provisions of which it was unaware," and holding
that it "is precisely because the Company made no effort whatsoev-
er to make anyone with supervisory authority ... aware ... that
the Company can be said to have acted with plain indifference and
thereby acted willfully"); Staley Reply Br. at 4 (agreeing that
"plain indifference is applicable in situations where the employer
did not know of the standard's requirements but had a reckless
disregard for employee safety").


that evidence of "reckless disregard" can substitute for evi-
dence of "familiarity with the standard's terms").

Moreover, although Staley cannot point to a case that
directly supports its position, the Secretary of Labor can
point to several that support hers. One is Kaspar Wire
Works itself. In that case, we upheld the Commission's
finding that Kaspar committed hundreds of willful violations
of the OSH Act by failing to record serious injuries on an
OSHA reporting form. The Commission noted the volume of
violations, the seriousness of the unreported injuries, and the
abundant evidence of Kaspar's actual knowledge of what was
required under OSHA's reporting regulations. Kaspar Wire
Works, 268 F.3d at 1126. Although the employer claimed
that it had not purposely changed its recordkeeping practices
to omit the injuries, we held that "[f]rom this evidence, the
Commission could reasonably infer" that "Kaspar Wire's
recordkeeping practices underwent a dramatic" and intention-
al change. Id. at 1128.

Another case to which the Secretary directs our attention is
Pepperidge Farm Inc., 17 O.S.H. Cas. (BNA) 1993, 1998
(OSHRC 1997). In that case, the Commission again found
the employer to have committed numerous willful violations of
the Act by failing to report occupational injuries. The Com-
mission deemed the violations willful notwithstanding that "no
one at Pepperidge checked the accuracy" of the firm's report
form--and thus, in Staley's terms, notwithstanding that the
company lacked knowledge of the specific cited conduct. Id.
at 1999. Willfulness was established by evidence that, de-
spite the fact that its officials had a "heightened awareness"
of OSHA recordkeeping requirements, the employer failed to
provide basic training to those making the entries and "made
no attempt to remedy" the recordkeepers' lack of understand-
ing. Id. at 2000. The parallels to Staley's conduct are, again,
obvious.

Ironically, given its focus on the Kaspar Wire Works
formulation, Staley's principal response to the Secretary's
citation of Kaspar Wire Works and Pepperidge Farm is to
suggest that the Commission decided them wrongly. Staley


Br. at 21. Since this court affirmed Kaspar Wire Works, that
is not a winning argument. Alternatively, Staley argues that
recordkeeping cases should be treated differently from equip-
ment cases. But since both involve violations by omission, it
is reasonable for the Secretary and the Commission to regard
them as of a piece. Indeed, we see little distinction between
Kaspar Wire Works and Pepperidge Farm, where the willful
violations were failures to include serious injuries in reports,
and this case, where the violation was a failure to use only
approved equipment in hazardous locations.

Finally, we are also persuaded by the Secretary's argument
that, were she not permitted to substitute plain indifference
for knowledge of specific conditions, cases like this one--in
which the citation is for failing to act rather than for affirma-
tively acting--would be difficult if not impossible to prove.
Cf. Saba v. Compagnie Nationale Air France, 78 F.3d 664,
668 (D.C. Cir. 1996) (noting that, if recklessness were not
permitted as a proxy for intent in Warsaw Convention cases,
"it might be all too easy for the wrongdoer to deliberately
blind himself to the consequences of his tortious action").
Indeed, to adopt Staley's position would be to write the
doctrine of "willful blindness," well known in the criminal law,
out of OSH Act enforcement. That doctrine "allows the jury
to impute the element of knowledge to the defendant if the
evidence indicates that he purposely closed his eyes to avoid
knowing what was taking place around him." Schnabel, 939
F.2d at 203. As we pointed out at oral argument, under
Staley's formulation, a company could avoid liability for willful
violations of OSHA standards by literally blindfolding its
safety inspectors: because the inspectors could not see the
unsafe conditions, the conditions could not be regarded as
"voluntary." Although Staley's counsel conceded that, under
her client's proposed rule, those violations would not be
willful, she suggested that Staley might make an exception
for such an egregious case. But both the making of excep-
tions and the crafting of general rules are tasks the statute
delegates to the Secretary, not to Staley. And as long as


those rules are reasonable, as they are here, we are bound to
defer.

V

The record in this case contains ample evidence that Sta-
ley's violations of the hazardous locations and hazard commu-
nication standards were committed with plain indifference to
the requirements of the OSH Act. The Commission was
therefore well within its discretion to find those violations
willful and to assess the attendant penalties. Accordingly,
the petition for review is

Denied.