The role of machine guards

A 12-lb. piece of metal, rotating rapidly in a small lathe, broke loose and killed a machine operator.

This was not the first time a piece of metal broke loose, but it was the first incident that caused injury. And, in this case, the metal resulted in a fatal blow to the operator’s head.

The operator’s company had machine guards on all its lathes. But the company had removed guards from smaller lathes like the one in the accident before this May 2009 accident.

The Occupational Safety and Health Administration (OSHA) cited the employer, Loren Cook Co., for violating the guarding standard at 29 CFR 1910.212(a)(1) and assessed penalties totaling $490,000. The regulation states: “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 method are barrier guards, two-hand tripping devices, electronic safety devices, etc.”

The company contested. After a 20-day trial, the presiding administrative law judge rejected OSHA’s charges and vacated the penalties. The judge reasoned the standard does not address catastrophic failure. Contending that it correctly interpreted the regulation to require protection from anything that might be ejected, OSHA appealed to the Occupational Safety and Health Review Commission.

The commission upheld the judge but OSHA appealed to the U.S. Court of Appeals for the Eighth Circuit, where a three-judge panel rejected the earlier decisions and upheld OSHA. The court deferred to OSHA about how its regulations are to be interpreted.

Deference denied

The decision of the three judges for OSHA did not hold up. Loren Cook requested review en banc, meaning review by all the court’s judges to determine whether the three judges were correct in upholding OSHA. When the court reviewed the case en banc, a majority of judges said the three-judge panel was wrong. The opinion was amended to decide for the company.

The majority opined OSHA’s interpretation of its regulation was not entitled to deference for three reasons: OSHA’s interpretation was not reasonable in that it “strains a common-sense reading”; OSHA had not previously interpreted the standard “to apply to the ejection of large objects from a lathe; and OSHA’s announcement of an unprecedented interpretation in an after-the-fact citation amounted to unfair surprise.”

Four judges did not side with the majority en banc. They disagreed that OSHA’s conclusion was unreasonable. They considered it appropriate for OSHA to expand its “evolving” interpretation to address a broader array of accidents that could result from the lack of a machine guard.

“For example, approximately two weeks before the incident that killed the worker, a workpiece from a small lathe shot out and narrowly missed a worker twenty feet away,” the dissenters said.

They said the secretary’s interpretation should be upheld. They acknowledged OSHA’s after-the-fact interpretation was a surprise to the company, but said that could be dealt with by a reduction in penalty.

It is not uncommon for resolutions to flip-flop. End results will depend on how far a case goes and which judges review the case. The result in this case could change if OSHA obtains review by the U.S. Supreme Court.

MSHA guarding comparison

A similar case could arise in the Mine Safety and Health Administration (MSHA) world. MSHA has similar guarding requirements. The regulation at 30 CFR 56/57.14107(a) states: “Moving machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.”

Separately, 56/57.14110 states: “In areas where flying or falling materials generated from the operation of screens, crushers or conveyors present a hazard, guards, shields or other devices that provide protection against such flying or falling materials shall be provided to protect persons.”

Sometimes, MSHA has been accorded deference when a mine operator challenges a broad interpretation, and sometimes not. Courts ordinarily defer to enforcement agencies. However, there could easily be a case where the Eighth Circuit’s reasoning in the Loren Cook case could be applied to reject a citation issued under MSHA’s guarding regulations.

Without regard to case decisions, an employer’s concern day to day is the safety of the workforce. Compliance with regulations does not guarantee workers will be safe. Continuous vigilance for areas and activities that could suddenly become dangerous is essential.

When accidents are prevented, no one dies. No citations are issued. And there is no need to spend years in court with an outcome uncertain.

Take note

It is not uncommon for resolutions to flip-flop. End results will depend on how far a case goes and which judges review the case.