891 F.2d 1495 (10th Cir. 1989), 86-2641, Dole v. Occupational Safety and Health Review Com'n

Docket Nº:86-2641.
Citation:891 F.2d 1495
Party Name:Elizabeth H. DOLE, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent, CF & I Steel Corporation, Intervenor-Respondent.
Case Date:December 22, 1989
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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891 F.2d 1495 (10th Cir. 1989)

Elizabeth H. DOLE, Secretary of Labor, Petitioner,



CF & I Steel Corporation, Intervenor-Respondent.

No. 86-2641.

United States Court of Appeals, Tenth Circuit

December 22, 1989

John Shortall, Attorney, U.S. Dept. of Labor (George R. Salem, Sol. of Labor, Cynthia L. Attwood, Associate Sol. for Occupational Safety and Health, Joseph M. Woodward, Counsel for Appellate Litigation, Andrea C. Casson, Asst. Counsel for

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Appellate Litigation, with him on the brief), Washington, D.C., for petitioner.

L. Carey Unkelbach (John D. Faught, on the brief), Englewood, Colo., for intervenor-respondent.

Before MOORE and BALDOCK, Circuit Judges and DAUGHERTY, District Judge. [*]

BALDOCK, Circuit Judge.

The Secretary of Labor (Secretary) appeals from a decision of the Occupational Safety and Health Review Commission (Commission) vacating a citation charging CF & I Steel Corporation (CF & I) with willfully violating 29 C.F.R. § 1910.1029(g)(3). That regulation governs employee exposure to coke oven emissions. The Secretary argues that CF & I violated the Occupational Safety and Health Act (OSHA) by failing to utilize atmospheric testing, as envisioned by OSHA regulations, to insure that respirators worn by its employees fit properly. The Secretary further contends that her interpretation of OSHA regulations is entitled to deference. In contrast, CF & I favors the Commission's interpretation of OSHA regulations, which holds that atmospheric testing is not required to insure respirator fit, and contends that the Commission's interpretation is entitled to deference.

Our jurisdiction arises under 29 U.S.C. § 660(b). We hold that, in the face of conflicting regulatory interpretations, deference is properly accorded to the interpretation of the Commission. Finding the Commission's interpretation of coke oven respiratory regulations to be reasonable, we affirm.


CF & I operated a steel plant near Pueblo, Colorado. As part of its steel-making operation, the company produced coke, a coal derivative, to fuel its blast furnaces. Coke production creates carcinogenic vapors which are dangerous to workers' health. Acting pursuant to OSHA, the Secretary promulgated regulations setting the maximum allowable emissions for coke ovens and mandating the use of respirators whenever that level was exceeded. See generally 29 C.F.R. § 1910.1029. These regulations were upheld following a challenge by CF & I and other coke producers. See American Iron & Steel Inst. v. OSHA, 577 F.2d 825 (3d Cir.1978), cert. dismissed, 448 U.S. 917, 101 S.Ct. 38, 65 L.Ed.2d 1180 (1980).

In order to perform their protective function, respirators must be fitted properly on each employee. Although there are several ways to test a respirator for proper fit, two methods are relevant to this case: 1) positive/negative pressure testing whereby the employee places the respirator on his face, inhales or exhales, and checks for any leakage of air along the seal; and, 2) atmospheric testing in which the employee wears a respirator in a room filled with noxious vapors, commonly known as "banana oil" vapors, and tries to detect the odor.

CF & I conducted a training program in respirator usage for its coke oven employees. A training film was produced and shown instructing employees how to perform the positive/negative pressure test. CF & I also conducted atmospheric testing for its employees, twenty-eight of whom detected the odor of banana oil. CF & I allowed these twenty-eight employees to return to work with the same respirator.

The Secretary cited CF & I for failing to equip the twenty-eight employees who detected banana oil with respirators that fit. The ALJ affirmed the citation and, finding CF & I a willful violator, fined the corporation $10,000. On appeal, the Commission reversed the ALJ, holding that 29 C.F.R. § 1910.1029(g)(3) only enunciates a training standard for respirator usage, not a testing standard for respirator fit.



Normally, an administrative agency's interpretation of a statute is entitled to

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considerable deference and should be disturbed only if unreasonable. See Chapman v. Department of Health & Human Serv., 821 F.2d 523, 527 (10th Cir.1987). Such deference is particularly appropriate where an agency interprets its own administrative regulations. See Edwards v. Califano, 619 F.2d 865, 868 (10th Cir.1980). Even when two equally reasonable interpretations are present, the reviewing court must defer to the interpretive choice of the administrative agency. Brennan v. OSHRC & Kesler, 513 F.2d 553, 554 (10th Cir.1975) (Kesler ).

In the instant case, the Secretary and Commission disagree over the proper interpretation of 29 C.F.R. § 1910.1029(g)(3). The Secretary contends that the regulation requires atmospheric testing to assure that each employee is properly fitted with a respirator while the Commission interprets the regulation as requiring atmospheric testing only in the course of training employees on the proper application of respirators. The question therefore arises: When the Secretary and Commission disagree over the interpretation of an OSHA regulation, which view prevails, i.e., to whom is deference owed?

Whether judicial deference under OSHA is accorded to the regulatory interpretations of the Secretary or the Commission is an issue upon which the federal circuits are split. The First, Fifth, and Seventh Circuits defer to the Secretary. See United Steelworkers of Am. v. Schuylkill Metals Corp., 828 F.2d 314, 319-20 (5th Cir.1987); Brock v. Chicago Zoological Soc'y, 820 F.2d 909, 912 (7th Cir.1987); Donovan v. A. Amorello & Sons, 761 F.2d 61, 64-66 (1st Cir.1985). See also Brock v. Cathedral Bluffs Oil Co., 796 F.2d 533, 537, 537 n. 2 (D.C.Cir.1986) (deferring to Secretary over Federal Mine Safety and Health Review Commission in case brought under Federal Coal Mine Safety and Health Act). In contrast, the Second, Fourth, Sixth, Eighth and Ninth Circuits defer to the Commission. See Brock v. Bechtel Power Corp., 803 F.2d 999, 1000-01 (9th Cir.1986); Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127, 132 (6th Cir.1978); Marshall v. Western Electric, 565 F.2d 240, 244 (2d Cir.1977); Brennan v. OSHRC, 513 F.2d 713, 715-16 (8th Cir.1975); Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1261-62 (4th Cir.1974).

The Secretary cites our decision in Kesler, 513 F.2d at 553, for the proposition that this circuit defers to the Secretary's regulatory interpretation over that of the Commission. In Kesler, we were faced with a dispute between the Secretary and Commission over the effective date of an abatement order under OSHA and concluded that the Secretary's regulatory interpretation was proper. Id. at 558. However, contrary to the arguments advanced by the Secretary in the instant case, this court in Kesler did not reach its conclusion merely by adopting the Secretary's reasonable interpretation; we considered the respective views of the Secretary and Commission and found the Commission's interpretation unsupported by the regulatory language. The result of Kesler should not...

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