750 F.3d 1006
8th Cir.2014Background
- Loren Cook manufactured parts on lathes; small-lathe guards had been removed and a 12-pound workpiece was ejected in May 2009, killing an operator. Prior ejections had occurred.
- OSHA (the Secretary) cited Loren Cook for seven violations of 29 C.F.R. § 1910.212(a)(1) (machine guarding), proposing $70,000 per violation ($490,000 total), asserting the regulation coversguards against ejected workpieces.
- An ALJ, after a 20-day hearing, held § 1910.212(a)(1) did not apply to thrown workpieces (treating listed hazards as limited to debris/normal by-products) and declined to reach other defenses (feasibility, willfulness, notice, etc.). The Commission adopted the ALJ’s decision without comment.
- The Secretary petitioned for review in the Eighth Circuit, urging that the regulation’s text reasonably covers hazards created by rotating parts (including ejected workpieces) and seeking deference over the Commission’s contrary reading.
- The Eighth Circuit majority concluded the Secretary’s interpretation is reasonable, applied Martin deference (deferring to the Secretary over the Commission when both offer reasonable but conflicting interpretations), reversed the Commission, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (Secretary) | Defendant's Argument (Loren Cook / ALJ / Commission) | Held |
|---|---|---|---|
| Whether § 1910.212(a)(1) covers ejection of an entire workpiece | The phrase “hazards such as those created by ... rotating parts” reasonably encompasses ejected workpieces | The text is limited to debris/by-products ("flying chips, sparks") and hazards of normal operation; ejected workpieces are atypical/abnormal and relate to malfunction | Held for Secretary: regulation reasonably covers hazards created by rotating parts, including ejected workpieces; ALJ’s narrow reading reversed |
| Whether courts should defer to the Secretary or the Commission when both advance reasonable but conflicting interpretations | Secretary: Martin requires deference to Secretary as policymaker/enforcer | Commission/ALJ: their interpretation is reasonable and should control as adjudicator of facts | Held for Secretary: applying Martin, deference is owed to Secretary over Commission when both are reasonable |
| Whether the Secretary’s new interpretation is unreasonable due to lack of prior consistent enforcement (fair notice/unfair surprise) | Secretary: interpretation is textually supported; past acquiescence is only one factor and does not make a reasonable interpretation impermissible | Loren Cook: Secretary long acquiesced in narrower reading (e.g., Carlyle), so imposing a large fine now is unfair surprise | Held: Court acknowledged notice concerns but found the Secretary’s interpretation reasonable and not per se barred by past practice; remanded for further proceedings where notice/penalty issues can be addressed |
| How to resolve fact-intensive defenses (feasibility, willfulness, credibility) left unaddressed by ALJ | Secretary: merits should be considered if regulation applies | Loren Cook: ALJ declined to reach these because of threshold ruling; those factual issues remain | Held: Reversed and remanded so remaining fact-bound issues (feasibility, notice, willfulness, penalties) can be litigated in light of the applicable regulatory interpretation |
Key Cases Cited
- Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144 (1991) (when Secretary and Commission advance competing reasonable interpretations of OSHA regulations, courts defer to Secretary)
- Solis v. Summit Contractors, Inc., 558 F.3d 815 (8th Cir. 2009) (applies Martin deference in Eighth Circuit)
- Carlyle Compressor Co. v. Occupational Safety & Health Review Comm’n, 683 F.2d 673 (2d Cir. 1982) (interpreted § 1910.212(a)(1) narrowly to exclude thrown workpieces; distinguishes normal vs. abnormal projectiles)
- Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012) (agency interpretations announced after long inaction may be undeserving of deference because of unfair surprise)