Beaver Plant Operations Inc. v. Herman

• Decision Date: 07 June 2000
• Docket Number: No. 99-2257,99-2257
• Citation: 223 F.3d 25
• Parties: (1st Cir. 2000) BEAVER PLANT OPERATIONS, INC., PETITIONER, V. ALEXIS M. HERMAN, SECRETARY OF LABOR; OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, RESPONDENTS. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 25

223 F.3d 25 (1st Cir. 2000)

BEAVER PLANT OPERATIONS, INC., PETITIONER,

V.

ALEXIS M. HERMAN, SECRETARY OF LABOR; OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, RESPONDENTS.

No. 99-2257

United States Court of Appeals For the First Circuit

Heard June 7, 2000

Decided September 7, 2000

Brent A. Singer, with whom Phillip D. Buckley, and Rudman & Winchell, Llc were on brief, for petitioner.

Lee Grabel, Attorney, U.S. Department of Labor, with whom Henry L. Solano, Solicitor of Labor, Joseph M Woodward, Associate Solicitor for Occupational Safety and Health, and Bruce Justh, Counsel for Appellate Litigation, were on brief, for respondent Secretary of Labor.

Before Torruella, Chief Judge, Lipez, Circuit Judge, and

Schwarzer,^* Senior District Judge.

Torruella, Chief Judge.

The appellant, Beaver Plant Operations, Inc., seeks review of the Final Judgment of the Occupational Health and Safety Review Commission. For the reasons discussed below, we vacate the citation.

BACKGROUND

I. Factual Background

The following facts are not in dispute. Beaver runs a wood-burning electricity plant in Livermore Falls, Maine. One of the buildings in Beaver's plant has a 140-foot tall emissions stack on its roof with a steel ladder attached to its side.

On August 26, 1996, the body of an employee of Eastmount Environmental, an outside environmental testing company, was found in a crevice on the roof, near the base of the stack. It was apparent that he had fallen, but there were no witnesses to the accident.

The fall prompted an OSHA inspection. As a result of the investigation, Beaver received a citation for a violation of OSHA standard 29 C.F.R. § 1910.23(a)(2), which provides:

Every ladderway floor opening or platform shall be guarded by a standard railing with standard toeboard on all exposed sides (except at entrance to opening), with the passage through the railing either provided with a swinging gate or so offset that a person cannot walk directly into the opening.

§ 1910.23(a)(2) [hereinafter § (a)(2)].

Approximately seventy feet above the roof, the ladder passes through a rectangular opening in the floor of a platform that encircles the stack. The floor opening is bordered on one side by a railing that guards the perimeter of the platform and on the opposite side by the stack and the ladder. Beaver received the citation because the two other sides of the opening are not guarded.

The ladder is used by only two Beaver employees who periodically climb the stack and perform tasks. Those two employees have been with the company since the construction and start up of the plant in 1992. They are required, and were trained, to use a ladder climbing device, which is attached to a belt around their waste and to a rail of the ladder. When they step off the ladder onto the platform they are supposed to attach themselves to a safety lanyard. Their work is conducted away from the ladderway opening.

Additionally, the ladder is used four times a year by an employee of Eastmount Environmental to conduct quarterly emissions tests. Eastmount trains its employees on the use of safety climbing devices and provides its own safety equipment.

II. The ALJ's Opinion

After hearing testimony from an OHSA expert, industry experts, a design engineer from the firm that designed Beaver's worksite, a Beaver plant engineer, and other Beaver employees, the Administrative Law Judge ("ALJ") vacated the citation. First, the ALJ observed that two standards apply to platforms, § (a)(2), which applies to ladderway floor openings, and 29 C.F.R. § 1910.23(c)(1) [hereinafter § (c)(1)],¹ which applies to open-sided floors, platforms, and runways. The ALJ then noted that confusion arises because § (a)(2) applies to ladderway floor openings and § (c)(1) refers to an "entrance to a... fixed ladder." However, relying on the testimony of OSHA's expert, the ALJ explained the difference: Section (a)(2) applies to a ladder opening on the interior of the platform, which must be protected, and § (c)(1) applies to a ladder opening on the exterior of the platform (an opening on the perimeter), which need not be protected.

Determining that § (a)(2) is the proper standard for Beaver's floor opening, the ALJ addressed the Secretary's interpretation of § (a)(2). The Secretary argued that § (a)(2) requires guarding in the form of a swing gate or offset railing at the entrance to a ladderway floor opening. The ALJ commented, however, that such a reading, which would admittedly achieve the standard's goal of protecting employees working on the platform from inadvertent falls through the entrance, failed to account for the parenthetical "(except at entrance to opening.)" The ALJ recognized that only in the absence of the parenthetical does the standard unambiguously require a swing gate or offset railing at the entrance to the opening. Significantly, at the hearing, the OSHA expert was unable to explain the meaning of the parenthetical in a manner consistent with the Secretary's interpretation. The ALJ concluded, therefore, that the presence of the parenthetical could reasonably be understood to exclude the entrance to the ladderway from guarding requirements, an understanding that is consistent with the standards for guarding perimeter entrances in § (c)(1) and stairway floor openings in 29 C.F.R. § 1910.23(a)(1) [hereinafter § (a)(1)].² In summary, the ALJ concluded that the Secretary's interpretation was inconsistent with the other standards for guarding floor openings and was, therefore, unreasonable.

As a consequence, the ALJ found, relying on expert testimony, that the ambiguous language created confusion in the industry so that there is no consensus on the guarding required at openings. Despite testimony from Beaver's plant engineer acknowledging that some form of guarding was required³ and the availability of three OSHA interpretive letters⁴ that explain the Secretary's interpretation of § (a)(2), the ALJ held that "the Secretary had not provided fair notice of its interpretation of the cited standard as applied in this case."

Beaver also presented evidence that until August 1996, none of Beaver's employees or any employee of an outside consultant had ever had an incident related to the ladder, nor had any employee voiced a concern about the safety of the ladderway opening. Moreover, one of the Beaver employees who periodically worked on the platform testified that a swing gate would make it more difficult to maneuver in the work area. However, the ALJ did not make a finding regarding Beaver's knowledge of a hazardous condition, or lack thereof.

Based on the finding that Beaver did not have notice of the standard's requirements, the ALJ vacated the citation.

III. The Commission's Opinion

The Commission reversed the ALJ's decision and affirmed the citation. The Commission concluded that the parenthetical applied to the words just preceding it "by a standard railing with standard toeboard," rather than to the more general guarding requirement and, therefore, that the entrance must be guarded by a swinging gate or offset railing. The Commission reasoned that there is no legal requirement that § (a)(2) be consistent with § (a)(1) or § (c)(1), particularly in light of "differing considerations and purposes behind the different guarding requirements." The Commission also concluded that "the language of the standard provides adequate notice that the ladderway floor opening must be guarded." The Commission referenced the OSHA Interpretive Letters but merely to demonstrate that the Secretary's interpretation of § (a)(2) in this proceeding was consistent with its earlier interpretations. Cf. Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 157 (1991) (noting that less formal means of interpreting regulations, such as interpretive rules or agency enforcement guidelines, can be brought to bear on the reasonableness of the Secretary's position). The Commission drew no factual conclusions from the interpretive letters with respect to Beaver's actual or constructive notice. Additionally, the Commission dismissed any reference to industry practice based on its conclusion that the standard was not vague or ambiguous. The Commission then completed its analysis by finding that employees were exposed to, and that Beaver had knowledge of, the violative condition.

DISCUSSION

Our analysis of the Commission's decision requires two steps. First, the Court reviews the Commission's interpretation of § (a)(2) to determine whether it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Empire Co. v. Occupational Safety & Health Review Comm'n, 136 F.3d 873, 874 (1st Cir. 1998); see also Reich v. Simpson, Gumpertz & Heger, Inc., 3 F.3d 1, 2 (1st Cir. 1993). In making this determination, "'an agency's construction of its own regulations is entitled to substantial deference.'" Empire, 136 F.3d at 875 (quoting Simpson, 3 F.3d at 2). Accordingly, the agency's interpretation should be given full effect if it is reasonable, that is if it "sensibly conforms to the purpose and wording of the regulation." Id.; see also Simpson, 3 F.3d at 2. As a consequence, even if the regulation is ambiguous, the Court defers to the agency's reasonable interpretation. See Modern Continental/Obayashi v. Occupational Safety & Health Review Comm'n, 196 F.3d 274, 281 (1st Cir. 1999); Simpson, 3 F.3d at 2.

The second component of our analysis is, if the Secretary's interpretation is reasonable, whether the appellant had adequate notice of the Secretary's interpretation of the regulation. See Modern Continental, 196 F.3d at 281; Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335 (6th Cir. 1978); Diamond Roofing Co. v. Occupational Safety & Health Review Comm'n, 528 F.2d 645, 649 (5th Cir. 1976). The burden is on the Secretary to establish that Beaver had actual or constructive notice that, pursuant to § (a)(2), a swing gate or offset railing was...