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 (8th 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 common- sense 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 permit section 1910.212(a)(1) to apply to virtually any 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 situation, no matter how remote, in which a hazard can be tied to some movement on a machine.”