Secretary of Labor v. Seward Ship's Drydock, Inc., 091119 FED9, 18-71216

Docket Nº18-71216
Opinion JudgeW. FLETCHER, CIRCUIT JUDGE.
Party NameSecretary of Labor, U.S. Department of Labor, Petitioner, v. Seward Ship's Drydock, Inc., Respondent.
AttorneyLouise McGauley Betts (argued), Senior Attorney; Charles F. James, Counsel for Appellate Litigation; Edmund C. Baird, Acting Associate Solicitor of Labor for Occupational Safety and Health; Kate O'Scannlain, Solicitor of Labor; United States Department of Labor, Washington, D.C.; for Petitioner. ...
Judge PanelBefore: A. Wallace Tashima, William A. Fletcher, and Marsha S. Berzon, Circuit Judges.
Case DateSeptember 11, 2019
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Secretary of Labor, U.S. Department of Labor, Petitioner,

v.

Seward Ship's Drydock, Inc., Respondent.

No. 18-71216

United States Court of Appeals, Ninth Circuit

September 11, 2019

Argued and Submitted June 13, 2019 Anchorage, Alaska

On Petition for Review of an Order of the Occupational Safety & Health Review Commission OSHC No. 09-1901.

Louise McGauley Betts (argued), Senior Attorney; Charles F. James, Counsel for Appellate Litigation; Edmund C. Baird, Acting Associate Solicitor of Labor for Occupational Safety and Health; Kate O'Scannlain, Solicitor of Labor; United States Department of Labor, Washington, D.C.; for Petitioner.

No appearance by Respondent.

Before: A. Wallace Tashima, William A. Fletcher, and Marsha S. Berzon, Circuit Judges.

SUMMARY[*]

Occupational Safety and Health Review Commission

The panel granted the Secretary of Labor's petition for review of a decision of the Occupational Safety and Health Review Commission interpreting a provision of the Respiratory Protection Standard promulgated under the Occupational Safety and Health Act of 1970, 29 C.F.R. § 1910.134.

The panel adopted the Secretary's interpretation of § 1910.134(d)(1)(iii), requiring covered employers to evaluate the respiratory hazards at their workplaces whenever there is the "potential" for overexposure of employees to contaminants, in order to determine whether respirators are "necessary to protect the health" of employees. The panel held that the text, structure, purpose, and regulatory history of the Standard all pointed in the same direction, and the panel adopted the Secretary's interpretation without resorting to Auer deference.

OPINION

W. FLETCHER, CIRCUIT JUDGE.

We are asked to interpret a provision of the Respiratory Protection Standard ("Standard"), promulgated under the Occupational Safety and Health Act of 1970. 29 C.F.R. § 1910.134. Section 1910.134(a)(2) of the Standard provides, "A respirator shall be provided to each employee when such equipment is necessary to protect the health of such employee." The lead sentence of § 1910.134(d) provides, "This paragraph requires the employer to evaluate respiratory hazard(s) in the workplace[.]" Section 1910.134(d)(1)(iii), whose meaning is at issue in this case, provides, "The employer shall identify and evaluate the respiratory hazard(s) in the workplace[.]"

The Secretary of Labor ("Secretary") has consistently interpreted § 1910.134(d)(1)(iii) to require covered employers to evaluate the respiratory hazards at their workplaces whenever there is the "potential" for overexposure of employees to contaminants, in order to determine whether respirators are "necessary to protect the health" of employees. In the case now before us, the Occupational Safety and Health Review Commission ("Commission") disagreed with the Secretary. The Commission held that § 1910.134(d)(1)(iii) applies only when respirators have already been determined to be "necessary." In the view of the Commission, the only function of an evaluation under § 1910.134(d)(1)(iii) is to provide guidance as to which respirator an employer should use once respirators have been determined to be "necessary."

We have jurisdiction under 29 U.S.C. § 660(a). We adopt the Secretary's interpretation of § 1910.134(d)(1)(iii). We accordingly grant the petition for review.

I. Regulatory Framework

We begin with an overview of the Respiratory Protection Standard. The Standard was promulgated under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq., pursuant to the Secretary's rulemaking authority. The Standard was first issued in 1971. It applies to industrial facilities in which respiratory hazards are likely to be present. One such facility is a shipyard. 63 Fed. Reg. 1152, 1178-79 (January 8, 1998). The Standard is enforced by the Occupational Safety and Health Administration ("OSHA").

In its first subsection, the Standard describes its overall purpose. The Standard seeks to "control . . . occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors[.]" 29 C.F.R. § 1910.134(a)(1). The "primary objective" of the Standard is "to prevent atmospheric contamination." Id. The

Standard prescribes the methods by which employers should protect their employees from contamination: [Protecting employees from atmospheric contamination] shall be accomplished as far as feasible by accepted engineering control measures (for example, enclosure or confinement of the operation, general and local ventilation, and substitution of less toxic materials). When effective engineering controls are not feasible, or while they are being instituted, appropriate respirators shall be used pursuant to this section.

Id. The Standard provides that respirators must be provided when "necessary": A respirator shall be provided to each employee when such equipment is necessary to protect the health of such employee. The employer shall provide the respirators which are applicable and suitable for the purpose intended. . . .

Id. § 1910.134(a)(2) (emphasis added).

The Standard does not define or describe the conditions under which respirators are "necessary." However, a separate regulation specifies permissible exposure limits ("PELs") for various air contaminants. The regulation requires that "administrative or engineering controls" be implemented to keep exposures below the specified PELs. 29 C.F.R. § 1910.1000(e). If such controls do not achieve "full compliance," "protective equipment or any other protective measures shall be used[.]" Id. Respirators are "protective equipment." PELs for specific contaminants are set forth in three tables in § 1910.1000.

Section 1910.134(d) of the Standard is titled "Selection of respirators." It begins, "This paragraph requires the employer to evaluate respiratory hazard(s) in the workplace, identify relevant workplace and user factors, and base respirator selection on these factors." (Emphasis added.) Section (d)(1), "General requirements," has four subsections. One of them is § 1910.134(d)(1)(iii), the provision whose meaning is at issue in this case. It provides in its entirety:

The employer shall identify and evaluate the respiratory hazard(s) in the workplace; this evaluation shall include a reasonable estimate of employee exposures to respiratory hazard(s) and an identification of the contaminant's chemical state and physical form. Where the employer cannot identify or reasonably estimate the employee exposure, the employer shall consider the atmosphere to be IDLH [immediately dangerous to life or health].

(Emphasis added.)

Section 1910.134(d)(1)(iii) was added to the Standard in 1998. A lengthy "preamble" was published with the revised Standard. The first two sentences addressing the newly added section provide:

Section (d)(1)(iii) of the final rule requires the employer to identify and evaluate the respiratory hazard(s) in the workplace. To perform this evaluation, the employer must make a "reasonable estimate" of the employee exposures anticipated to occur as a result of those hazards, including those likely to be encountered in reasonably foreseeable emergency situations, and must also identify the physical state and chemical form of such contaminant(s).

63 Fed. Reg. at 1198 (emphasis added). The preamble goes on to explain that "[m]any of the components of paragraph (d)(1)(iii) of the final standard have been required practice since 1971 because they were included in the selection provisions of the 1969 ANSI [American National Standards Institute] standard incorporated by reference into [the] previous respiratory protection standard." Id. Section 1910.134(d)(1)(iii) simply "makes these provisions clearer by stating them explicitly in the regulatory text." Id.

An "OSHA Instruction," interpreting the Standard, was issued in 1998. A slightly revised Instruction was issued in 2014. The stated purpose of the Instruction in both versions was (and is) as follows: "This Instruction establishes agency interpretations and enforcement policies, and provides instructions to ensure uniform enforcement of the Respiratory Protection Standard[.]" Inspection Procedures for the Respiratory Protection Standard, CPL 02-00-158, § I (June 26, 2014) ("2014 Instruction"); Inspection Procedures for the Respiratory Protection Standard, CPL 2-0.120, § I (Sept. 25, 1998) ("1998 Instruction"). The 2014 Instruction provides: The employer is required to select and provide an appropriate respirator (NIOSH certified) based on the respiratory hazard(s) present in the workplace. The employer must identify hazardous airborne contaminants that employees may inhale and make a reasonable estimate of employee exposures in determining the appropriate respirator for employees to use. The employer must evaluate the respiratory hazards in the workplace where there is a potential for an employee overexposure.

2014 Instruction, at § IX(D) (emphasis added). The comparable passage in the 1998 Instruction provided exactly the same, but without the last sentence. 1998 Instruction, at § VII(E) (first two sentences). In a passage one page later, the 1998 Instruction included a roughly equivalent sentence: If the employer has not made any effort to assess the respiratory hazards and there is the potential for an overexposure, the CSHO should cite section (d)(1)(iii).

Id. at § VII(E)(2) (first sentence) (emphasis added). The critical point is that under both the 1998 and 2014 Instructions, employers were (and are) required to assess respiratory hazards based on the "potential" for overexposure of an employee. That is, an assessment for respiratory hazards is required even if it turns out that respirators are not "necessary...

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