I am posting this to merely share the news, BUT PLEASE remember a worker DIED in this accident, so from a SAFETY PERSPECTIVE we really should not give a rats ass as to what a court found and reversed the OSHA citation. This posting is NOT intended for “ammo” to show we do not have to guard our lathes, but rather to GUARD our lathes to save a life!
Following an industrial accident, the Secretary of Labor (Secretary) determined that the Loren Cook Company (Loren Cook) violated 29 C.F.R. § 1910.212(a)(1), which requires barrier guards on certain industrial equipment. The Secretary imposed a $490,000 fine against Loren Cook. An Administrative Law Judge (ALJ) rejected the Secretary’s interpretation of section 1910.212(a)(1) and vacated the fine. The Occupational Safety and Health Review Commission (Commission) adopted the ALJ’s decision as its own. The Secretary petitioned this court for review of the Commission’s order. A divided panel of this court granted the petition for review and reversed the Commission’s order. In granting Loren Cook’s petition for rehearing en banc, we vacated the panel decision. We now deny the Secretary’s petition for review and affirm the Commission’s order.
Loren Cook is an industrial manufacturer of air circulating equipment. Loren Cook uses lathes, which are industrial turning machines used to form and mold metal discs, in its manufacturing process. Lathes operate by holding heavily lubricated pieces of metal that rotate rapidly, allowing the lathe operator to apply tools to shape the metal into individual workpieces. Lathes vary in size depending on the size of the workpiece being produced. In May 2009, a Loren Cook lathe operator was killed when a 12-pound rotating metal workpiece broke
free from the lathe, flew out of his machine, and struck him in the head. The lathe ejected the workpiece at a speed of 50 to 70 miles per hour and, after the workpiece struck the operator in the head, it traveled along the floor at least another 20 feet before crashing into metal shelving.
In November 2009, the Secretary conducted an investigation of the industrial accident and issued two citations against Loren Cook. Relevant to this appeal, one citation found seven violations of 29 C.F.R. § 1910.212(a)(1) for failure to employ barrier guards to protect workers from ejected workpieces. Section 1910.212(a)(1) provides:
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 Secretary determined that Loren Cook’s failure to employ barrier guards to prevent the ejection of a workpiece from this kind of catastrophic breakdown of a lathe violated section 1910.212(a)(1). The Secretary assessed Loren Cook a fine of $70,000 for each violation of this section, resulting in a total fine of $490,000.
Loren Cook sought review from an ALJ, who, after conducting a 20-day hearing and compiling an extensive record, concluded that section 1910.212(a)(1) did not apply to the conduct for which the Secretary cited Loren Cook.
The ALJ reasoned that section 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 does not contemplate the catastrophic failure of a lathe that would result in a workpiece being thrown out of the lathe. The ALJ thus vacated the citation the Secretary issued against Loren Cook. The Commission adopted the unmodified recommendation of the ALJ. The Secretary subsequently petitioned our court for review of the Commission’s final order pursuant to 29 U.S.C. § 660(b).
We review a petition seeking review of a Commission order under a deferential standard pursuant to the Administrative Procedures Act, upholding the Commission’s factual findings if they are “supported by substantial evidence on the record considered as a whole,” and upholding the Commission’s legal conclusions “unless they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
The Commission adopted the ALJ’s order finding section 1910.212(a)(1) does not address catastrophic failures of lathes resulting in the ejection of workpieces and instead only considers routine risks of operation. The Secretary argues this was in error because the Secretary’s interpretation of its own regulation is entitled to considerable deference and the ALJ failed to afford the Secretary’s interpretation such deference.
CLICK HERE for the full decision.