In a split decision, the U.S. Court of Appeals for the Eighth  Circuit, in St. Louis, has sided with OSHA on its  interpretation of a machine guarding standard, 29 CFR  1910.212(a)(1). Perez v. Loren Cook Company, No. 13-1310  (8 th Cir. May 9, 2014). The standard describes methods of  machine guarding designed to protect the operator and  other employees in the area from hazards, some of which  are enumerated.

A majority of a three-judge panel held that the agency’s  interpretation of 29 CFR 1910.212(a)(1) was reasonable and  deserved deference.  Therefore, the Court granted OSHA’s  petition for review, overturned an order of the Occupational  Safety and Health Commission and remanded the case for  further review.  However, the dissenting judge reached the  opposite conclusion, and said he would deny OSHA’s petition  and affirm the Commission’s order.

The case stemmed from the death in May 2009 of an  employee of the Loren Cook Co., a manufacturer of air  circulating equipment.  The employee was killed when he  was struck on the head by a 12-pound workpiece which  flew from an unguarded lathe he was operating.  The lathe   once had protective guards, but by the time of the fatality,  the company had removed all of them from its small  lathes.  OSHA contended the lathes should have been  guarded and issued seven violations under the standard.   At $70,000 apiece, the fines came to $490,000.

The Missouri-based company appealed, in part claiming  OSHA’s interpretation was novel and thus unreasonable.   After a 20-day hearing, an administrative law judge (ALJ)  issued a decision siding with the employer, saying the  standard did not apply because it pertained to ejected debris,  not ejected workpieces.  He also held the standard was  intended to apply to normal operations, not malfunctioning  situations, as had occurred in the accident.  The ALJ’s decision  became a final order after the Commission declined OSHA’s  request to review it.  The Secretary of Labor then went to the  appeals court on behalf of the agency.

The panel majority held that in disputes between the agency  and the Commission over the interpretation of standards, the  agency’s view deserved deference.  It also found the agency’s  interpretation that the standard contained no limitations to  be supported by the text and reasonable. Accordingly, it  deserved deference, the majority ruled.

“The Secretary's interpretation comports with the plain  language of the statute …,” the majority wrote, adding that  “Loren Cook is wrong to suggest that a change of  regulatory interpretation by the Secretary must be viewed  as per se unreasonable.”  Nonetheless, the two judges said  they were “not unsympathetic” to the company’s  argument that the fine was unfair because of inadequate  notice from OSHA of the agency’s changed interpretation.

The dissenting judge said the Secretary’s interpretation was  not reasonable.  He argued the Secretary could not  demonstrate that he consistently interpreted the standard as  applicable to large objects ejected from a lathe.  Moreover,  the judge declared the Secretary’s “unprecedented  interpretation” that imposed a $490,000 fine constituted  unfair surprise, and the interpretation “strains a commonsense reading” of the text of the standard.

The judge relied on a similar case from the U.S. Court of  Appeals for the Second Circuit, in New York, which had  interpreted the regulation narrowly, concluding it did not  apply to a thrown workpiece and recognizing a distinction  between “normal” and “abnormal projectiles."

He also noted OSHA had acquiesced in that decision for  an extended period, failing to act even when it had prior  knowledge of the company’s manufacturing operations. When an agency “then changes its interpretation to  sanction conduct that occurred prior to the new interpretation, ‘there are strong reasons’ for withholding  deference,” the judge said, citing a prior case.

He added, “The Secretary’s hyper-literal interpretation of a  hazard created by rotating parts defies logic and seems to  permit section 1910.212(a)(1) to apply to virtually any  situation, no matter how remote, in which a hazard can be  tied to some movement on a machine.”