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Items 1 through 7 of Citation No. 2 are vacated.”
In addition, OSHA had earlier withdrawn all personal protective equipment (PPE) citations at trial for arm sleeves, goggles and hand protection, which the employees indicat- ed were provided and used during Loren Cook’s spinning
In examining this case, it is helpful to review the 1991
“Martin” U.S. Supreme Court Case on the interpretation of OSHA standards:
When there are any conflicting interpretation of what an OSHA standard means, as between OSHA and the Review Commission (OSHA Court) judges, OSHA’s interpretation prevails if
• OSHA’s interpretation is “reasonable;”
• The interpretation fits the textual words and intent of the standard cited;
• Has been consistently applied by OSHA; and
• Does not unfairly surprise employers.
After Martin, few cases refused to adopt OSHA’s inter-
pretation of standards, and the third and fourth require- ments of unreasonableness often were not emphasized.
When the full 12-judge “en banc” panel of the St. Louis based Eighth Circuit U.S. Court Of Appeals examined the 1910.212 standard, OSHA’s inconsistent prior enforcement
and acceptance of a 1982 New York Second Circuit Carlyle Compressor case decision that OSHA’s same standard did not apply to ejected or flying workpieces, the panel decision upheld, 8 to 4, Judge Welsch’s decision on October 13, 2015. The time for any appeal by OSHA to the U.S. Supreme Court has now expired.
The Eighth Circuit found that the lack of fair notice of OSHA’s unprecedented citations and stretching of the all- industry general machine-guarding standard prevented def- erence to OSHA’s interpretation. The court rejected Martin- type deference to OSHA because OSHA’s:
• Interpretation strains a common-sense reading of the standard. None of the five production-phase hazards listed in the standard—point of operation, ingoing nip points, rotating parts, flying chips and sparks—were present here. Ejection of workpieces is unlike any of those, and is a rare cat- astrophic event.
• OSHA failed to provide any proof that it had consistently enforced or interpreted this standard to cover the ejection of large objects or workpieces from lathes or spinning machinery.
• Most importantly, OSHA’s announcement of such an unprecedented interpretation in the citation against Loren Cook amounted to unfair surprise. MF
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