By Brent I. Clark, James L. Curtis, Adam R. Young, and Craig B. Simonsen
In a review of an Occupational Safety & Health Review Commission (OSHRC) decision, the U.S. Court of Appeals for the Eighth Circuit ruled this week to vacate a $490,000 penalty for failure to employ machine guards to prevent the ejection of a workpiece in a catastrophic breakdown of a lathe. Perez v. Loren Cook Company, No. 13-1310, __ F.3rd __ (8th Cir. October 13, 2015).
In its decision, the Court agreed with the OSHRC and its Administrative Law Judge (ALJ), which concluded that 29 CFR § 1910.212(a)(1) focuses on “point-of-contact risks and risks associated with the routine operation of lathes, such as flakes and sparks,” but the rule does not contemplate the catastrophic failure of a lathe that would result in a workpiece being thrown out of the lathe. The ALJ vacated the Occupational Safety & Health Administration’s (OSHA’s) citation issued against Loren Cook Company, and the OSHRC adopted the unmodified recommendation of the ALJ. Disagreeing, the Secretary of Labor petitioned the Court for review of the OSHRC order arguing that the Court should defer to OSHA’s interpretation of the standard. The Court denied the Secretary’s petition for review and affirmed the OSHRC’s order.
In its discussion, the Court noted that “we generally afford substantial deference to the Secretary’s interpretation of his own regulations.” “But deference to the Secretary’s interpretation is only appropriate when both the interpretation itself and the manner in which the Secretary announces the interpretation are reasonable.” The Court relied on and cited to Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 157-58 (1991). The Court cited Supreme Court precedent that deference to an Agency’s interpretation is inappropriate when the interpretation is “‘plainly erroneous or inconsistent with the regulation.’” Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)). Also, deference is inappropriate “when there is reason to suspect that the Agency’s interpretation ‘does not reflect the agency’s fair and considered judgment on the matter in question.’” Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012) (quoting Auer, 519 U.S. at 462).
The Court noted that in Perez v. Loren Cook Company, OSHA’s position conflicted with prior interpretations, and evidenced a position as nothing more than a litigating position, or using the interpretation as “a post hoc rationalization for a prior action.”
The Court also had its own precedent for parameters under which it should afford an Agency’s interpretation deference:
[D]eference is due when an agency has developed its interpretation contemporaneously with the regulation, when the agency has consistently applied the regulation over time, and when the agency’s interpretation is the result of thorough and reasoned consideration.” Solis v. Summit Contractors, Inc., 558 F.3d 815, 823 (8th Cir. 2009) (quoting Advanta USA, Inc. v. Chao, 350 F.3d 726, 728 (8th Cir. 2003)).
As such, the Court concluded that having determined that the Secretary’s interpretation of section 1910.212(a)(1) was not entitled to deference, and found that the section did not cover the conduct for which the Secretary cited Loren Cook.
OSHA Compliance Safety and Health Officers (CSHOs) and Area Directors often apply their own interpretations of the OSHA standards. This Eighth Circuit decision is a clear reminder that there are limits to OSHA’s ability to adopt new interpretations of its standards.