Eighth Circuit Rejects OSHA Interpretation Of Barrier Guard Standard
The Secretary of Labor (through OSHA) determined that an industrial manufacturer of air circulating equipment violated 29 C.F.R. 1910.212(a)(1), which requires barrier guards on certain industrial equipment, and fined the company $490,000. An ALJ rejected the Secretary’s interpretation of the standard and vacated the fine, the Occupational Safety and Health Review Commission adopted the ALJ’s decision, and the Secretary challenged the order in the Eighth Circuit. The panel decision of that court held in favor of the Secretary, but the court granted the company’s petition for rehearing en banc and yesterday, affirmed the Commission’s order and denied the Secretary’s petition for review.
The company used lathes, industrial turning machines used to form and mold metal discs, in its manufacturing process. In 2009, a lathe operator was killed when a 12-pound rotating metal workpiece broke free from the lathe, flew out of the machine, and struck him in the head. OSHA found seven violations of 29 CFR 1910.212(a)(1), which states, “Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are–barrier guards, two-hand tripping devices, electronic safety devices, etc.”
The Eighth Circuit concluded that the Secretary’s application of that standard to these facts was unreasonable for three reasons: 1) the interpretation strained a common-sense reading of the section given that ejection of parts was not the same kind of hazard as those mentioned in the regulation; 2) the Secretary failed to show that the regulation has been consistently interpreted, or even ever before interpreted, to apply to ejection of large objects from a lathe; and that 3) the application of this regulation to these facts would amount to unfair surprise against this company.
The dissent argued that the court should not substitute its own interpretation for the Secretary’s and that any concerns about the lack of notice of this specific interpretation could be dealt with by reducing the company’s penalties.
