Martin v. Occupational Safety and Health Review Com'n, No. 86-2641

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore MOORE and BALDOCK, Circuit Judges and DAUGHERTY; BALDOCK
Citation941 F.2d 1051
Parties15 O.S.H. Cas. (BNA) 1209, 1991 O.S.H.D. (CCH) P 29,431 Lynn MARTIN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent, CF & I Steel Corporation, Intervenor-Respondent.
Docket NumberNo. 86-2641
Decision Date05 August 1991

Page 1051

941 F.2d 1051
15 O.S.H. Cas. (BNA) 1209, 1991 O.S.H.D. (CCH)
P 29,431
Lynn MARTIN, Secretary of Labor, Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent,
CF & I Steel Corporation, Intervenor-Respondent.
No. 86-2641.
United States Court of Appeals,
Tenth Circuit.
Aug. 5, 1991.

Page 1053

Submitted on the briefs: *

Robert P. Davis, Sol. of Labor, Cynthia L. Attwood, Associate Sol. for Occupational Safety and Health, Ann Rosenthal, for Appellate Litigation and John Shortall, U.S. Dept. of Labor, Washington, D.C., for petitioner.

Randy L. Sego and John D. Faught, John Faught & Associates, Denver, Colo., for intervenor-respondent.

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

BALDOCK, Circuit Judge.

In Martin v. OSHRC, --- U.S. ----, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991), the Supreme Court held that a reasonable interpretation of the Secretary of Labor (Secretary) is to be preferred over a reasonable interpretation of the Occupational Safety and Health Review Commission (Commission) when it comes to an ambiguous regulation under the Occupational Safety and Health Act of 1970 (the Act). Id., 111 S.Ct. at 1175, 1179-80. We had held to the contrary. Dole v. OSHRC, 891 F.2d 1495, 1499 (10th Cir.1989), rev'd, --- U.S. ----, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991). In so holding, we denied the Secretary's petition for review and affirmed a Commission order vacating a citation against intervenor-respondent CF & I. Id. at 1496, 1500. The Supreme Court reversed our judgment and remanded for us to consider the reasonableness of the Secretary's interpretation of the regulation at issue, 29 C.F.R. § 1910.1029(g)(3) (1990). 1

CF & I is now in chapter eleven bankruptcy and suggests that "[a]ny claim against CF & I in this matter is a pre-petition non-priority claim ... subject to the jurisdiction of the bankruptcy court." While it is abundantly clear that we may not direct enforcement of a money judgment against CF & I, we may review the Commission's order insofar as the Secretary

Page 1054

sought abatement of a safety violation (prospective enforcement) and a monetary penalty. 11 U.S.C. § 362(b)(4) & (5); H.R.Rep. No. 595, 95th Cong., 1st Sess. 343 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 5963, 6299; 2 Brock v. Morysville Body Works, Inc., 829 F.2d 383, 388-89 (3d Cir.1987); Penn Terra Ltd. v. Dep't of Environmental Resources, 733 F.2d 267, 271-79 (3d Cir.1984). CF & I informs us that it ceased operating the relevant coke ovens in 1984, but we lack any assurance that such operation will not resume. Given that possibility, review is appropriate because worker safety is implicated. And we may review proceedings involving the determination and entry of a monetary penalty because the government's police or regulatory power is involved. See Edelman v. United States Dep't of Labor, 923 F.2d 782, 790-91 (10th Cir.1991); Penn Terra, 733 F.2d at 267. See also NLRB v. Edward Cooper Painting, Inc., 804 F.2d 934, 943 (6th Cir.1986) ("We thus affirm entry of a money judgment, but do not enforce that money judgment.") (emphasis in original).

Section 1910.1029(g)(3) incorporates a general regulation concerning respirator use, 29 C.F.R. § 1910.134 (1990). Relying on this general regulation, the Secretary interprets the regulation at issue to require qualitative atmospheric testing to assure that each employee is properly fitted with a respirator. This differs from the Commission's interpretation, which considers § 1910.1029(g)(3) as a training standard, 3 with the employer's regular testing obligation contained in 29 C.F.R. § 1910.1029(g)(4) (1990). 4 The distinction is relevant because the validity of an administrative citation against CF & I depends upon upholding the Secretary's interpretation, at least insofar as requiring an employer, who has performed atmospheric testing and detected leakage, to institute corrective action to insure proper respirator fit. 5 We

Page 1055

must decide whether in these circumstances § 1910.1029(g)(3) may be interpreted reasonably as requiring corrective action.

In our prior opinion, we upheld the Commission's interpretation of the regulation.

The plain wording of the incorporated § 1910.134(e)(5) prescribes that atmospheric testing is mandated in the "training" of employees. The Commission therefore concluded reasonably that CF & I was not required to utilize ongoing atmospheric testing to insure the proper fit of each employee's respirator.

891 F.2d at 1500. However, we acknowledged "the ambiguous regulatory language contained in 29 C.F.R. § 1910.1029," and concluded that "it is certainly possible to reach an alternate interpretation" than that advanced by the Commission. Id.

In deciding this case upon remand, we now focus upon the Secretary's interpretation of the regulation. Martin, 111 S.Ct. at 1178. At the same time, we must consider that interpretation in the context of the citation at issue and proceedings below. Given that atmospheric testing occurred at CF & I, we have no occasion to pass on the Secretary's position concerning ongoing atmospheric testing; rather, we consider only whether, having performed atmospheric testing and discovering excess leakage, CF & I was then required to institute corrective action to insure proper respirator fit before allowing the affected employees to return to work.

The Secretary's interpretation of an ambiguous regulation may be disregarded only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Martin, 111 S.Ct. 1180.

In situations in which "the meaning of [regulatory] language is not free from doubt," the reviewing court should give effect to the agency's interpretation so long as it is "reasonable," Ehlert v. United States, 402 U.S. 99, 105, 91 S.Ct. 1319, 1323, 28 L.Ed.2d 625 (1971), that is, so long as the interpretation "sensibly conforms to the purpose and wording of the regulations," Northern Indiana Pub. Serv. Co. v. Porter County Chapter of Izaak Walton League of America, Inc., 423 U.S. 12, 15, 96 S.Ct. 172, 174, 46 L.Ed.2d 156 (1975).

Martin, 111 S.Ct. at 1176. Thus, we must defer to the Secretary's interpretation on the narrow issue before us if it conforms to the purpose and wording of the regulation. Id. at 1176, 1179-80. As part of this reasonableness inquiry, we also may consider whether the Secretary consistently has applied the interpretation in the citation. Id. at 1179.

The coke oven emissions standard covers respiratory protection in four paragraphs: (g)(1) General; (g)(2) Selection; (g)(3) Respirator program; and (g)(4) Respirator usage. Without question, and as the Commission ably recognized, see CF & I Steel Corp., 12 OSHC 2067, 2077-78, the most specific language for this situation is contained in paragraph (g)(4):

Respirator usage. (i) The employer shall assure that the respirator issued to the employee exhibits minimum facepiece leakage and that the respirator is fitted properly.

29 C.F.R. § 1910.1029(g)(4). The Commission viewed this provision as defining exclusively an employer's ongoing obligation to assure proper fit of an employee's respirator, while paragraph (g)(3) pertained to training. CF & I, 12 OSHC at 2077-78.

Page 1056

Based upon this view, the Commission concluded that CF & I had an adequate training program within the meaning of paragraph (g)(3). Id. at 2079. As we noted in our prior opinion, this is a reasonable interpretation of paragraphs (g)(3) and (g)(4). Dole, 891 F.2d at 1500. But it is not the only reasonable interpretation.

Another reasonable interpretation of paragraph (g)(3), with its references to a "respirator program" and "respiratory protection program," is that an employer must, as part of its program, take steps to assure the proper fit of respirators including any necessary further inquiry and corrective action when atmospheric testing reveals excessive leakage. This insures that the program will be effective, a concept supported by the plain meaning of the word "program" and 29 C.F.R. § 1910.134, 6 referenced in paragraph (g)(3). "A regulation should be construed to give effect to the natural and plain meaning of its words." Diamond Roofing v. OSHRC, 528 F.2d 645, 649 (5th Cir.1976). "Program" is defined as "a plan of action to accomplish a specified end[,]" for example, "a school lunch program." Random House Dictionary of the English Language 1546 (2d ed. unabr. 1987). The specified end of the program required by paragraph (g)(3) is "respiratory protection," and any plan of action to achieve this end logically must include provision for corrective action (which may include respirator replacement) when testing confirms excessive leakage. Likewise, § 1910.134(b) generally recognizes, in the context of a respiratory protection program, the need for "continued effectiveness" and respirators which provide "adequate respiratory protection." See, e.g., 29 C.F.R. § 1910.134(b)(9) & (11).

The Secretary urges us to consider the preamble to § 1910.1029 to ascertain the meaning of § 1910.1029(g)(3). As secondary source of interpretation, we may consult the preamble accompanying a regulatory enactment. See Colorado v. Idarado Mining Co., 916 F.2d 1486, 1496 (10th Cir.1990) (preamble consulted), cert. denied, --- U.S. ----, 111 S.Ct. 1584, 113 L.Ed.2d 648 (1991). The preamble which accompanied promulgation discussed the inherent limitations of respirator technology, and mentioned the importance of proper fit to minimize leakage, thus affording workers some protection. 7 However, the preamble does not answer the specific question of whether paragraph (g)(3) or (g)(4) or both speak to a requirement of corrective action to insure proper fit when atmospheric testing coincident to training indicates excess leakage. Cf. Miller v. Commissioner, 836 F.2d 1274, 1282 (10th Cir.1988) (use of secondary sources for interpretation of ambiguous enactment...

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  • Citizens' Committee v. U.S. Forest Service, No. 01-4082.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 23, 2002
    ...notice to the public appear to fall below the prudential standing threshold. See Martin v. Occupational Safety & Health Review Comm'n, 941 F.2d 1051, 1058 (10th Cir.1991) ("CF & I's advance notice of the Secretary's interpretation is fatal to its due process claim because CF & I lacks stand......
  • HALLIBURTON ENERGY SERV. v. Dept. of Labor, No. S-8453
    • United States
    • Supreme Court of Alaska (US)
    • April 7, 2000
    ...373, 383 (Alaska 1995). 48. See id. 49. See id.; Summers v. Anchorage, 589 P.2d 863, 867 (Alaska 1979). 50. See, e.g., Martin v. OSHRC, 941 F.2d 1051, 1058 (10th Cir.1991); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1336 (5th Cir.1978) (citing United States v. National Dairy Products Corp., ......
  • Cascade Energy & Metals Corp., In re, No. 91-4083
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 7, 1992
    ...agency. Id. In view of the exemption from the automatic stay for police or regulatory action, 11 U.S.C. § 362(b)(4); Martin v. OSHRC, 941 F.2d 1051, 1054 (10th Cir.1991), we held that the district court's order was final and appealable despite the remand for damages. Eddleman, 923 F.2d at T......
  • Martin v. American Cyanamid Co., No. 92-3321
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 15, 1993
    ...preamble to a regulation may be consulted in determining the administrative construction and meaning of the regulation. Martin v. OSHRC, 941 F.2d 1051, 1056 (10th Cir.1991); Ohio Manufacturers' Assoc. v. Akron, 801 F.2d 824, 832-33 (6th Cir.1986), cert. denied and appeal dismissed, 484 U.S.......
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10 cases
  • Citizens' Committee v. U.S. Forest Service, No. 01-4082.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 23, 2002
    ...notice to the public appear to fall below the prudential standing threshold. See Martin v. Occupational Safety & Health Review Comm'n, 941 F.2d 1051, 1058 (10th Cir.1991) ("CF & I's advance notice of the Secretary's interpretation is fatal to its due process claim because CF & I lacks stand......
  • HALLIBURTON ENERGY SERV. v. Dept. of Labor, No. S-8453
    • United States
    • Supreme Court of Alaska (US)
    • April 7, 2000
    ...373, 383 (Alaska 1995). 48. See id. 49. See id.; Summers v. Anchorage, 589 P.2d 863, 867 (Alaska 1979). 50. See, e.g., Martin v. OSHRC, 941 F.2d 1051, 1058 (10th Cir.1991); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1336 (5th Cir.1978) (citing United States v. National Dairy Products Corp., ......
  • Cascade Energy & Metals Corp., In re, No. 91-4083
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 7, 1992
    ...agency. Id. In view of the exemption from the automatic stay for police or regulatory action, 11 U.S.C. § 362(b)(4); Martin v. OSHRC, 941 F.2d 1051, 1054 (10th Cir.1991), we held that the district court's order was final and appealable despite the remand for damages. Eddleman, 923 F.2d at T......
  • Martin v. American Cyanamid Co., No. 92-3321
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 15, 1993
    ...preamble to a regulation may be consulted in determining the administrative construction and meaning of the regulation. Martin v. OSHRC, 941 F.2d 1051, 1056 (10th Cir.1991); Ohio Manufacturers' Assoc. v. Akron, 801 F.2d 824, 832-33 (6th Cir.1986), cert. denied and appeal dismissed, 484 U.S.......
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