                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-1438
                                  ___________

Advanta USA, Inc., formerly known as *
Garst Seed Co.,                         *
                                        *
        Petitioner,                     *
                                        * On Petition for Review of an
     v.                                 * Order of the Occupational Safety
                                        * and Health Review Commission.
Elaine L. Chao, Secretary of Labor,     *
United States Department of Labor,      *
                                        *
        Respondent.                     *
______________________                  *
                                        *
American Seed Trade Association,        *
Incorporated,                           *
                                        *
        Amicus on Behalf of Petitioner. *
                                  ___________

                            Submitted: September 8, 2003

                                 Filed: December 1, 2003
                                  ___________

Before WOLLMAN, BOWMAN, and RILEY, Circuit Judges.
                        ___________

RILEY, Circuit Judge.

     The United States Department of Labor (DOL) cited Advanta USA, Inc.
(Advanta) for violating the Occupational Safety and Health Administration’s (OSHA)
Field Sanitation Standard (Standard), 29 C.F.R. § 1928.110, by failing to place toilet
and handwashing facilities in the middle of cornfields for seasonal workers. An
administrative law judge (ALJ) and the Occupational Safety and Health Review
Commission (OSHRC) affirmed the citation. Because we conclude the DOL’s
interpretation of the Standard is unreasonable, we vacate the OSHRC’s order and set
aside the citation.

I.     BACKGROUND
       Advanta, a Delaware corporation with its principal place of business in Iowa,
produces and sells hybrid seed corn. In 2001, Advanta contracted with Illinois
farmers to grow seed corn used in hybrid seed production for human consumption.
Under these contracts, Advanta is responsible for detasseling1 and harvesting the
crop. Advanta uses a machine to cut the tops off corn stalks, and follows later with
“high-clearance, four-wheel drive machines” to remove about fifty percent of the
tassels. Advanta then hires seasonal workers to walk the corn rows to finish the
detasseling process by hand-pulling the remaining tassels. Detasseling is a critical
part of the hybrid seed corn production process, and must be accomplished
completely and promptly at the peak pollination period.

      The Standard requires that toilet and handwashing facilities (facilities) “be
accessibly located and in close proximity to each other. The facilities shall be located
within a one-quarter-mile walk of each hand laborer’s place of work in the field.” 29
C.F.R. § 1928.110(c)(2)(iii). A terrain exception exists to the one-quarter-mile walk
requirement: “Where due to terrain it is not feasible to locate facilities as required
above, the facilities shall be located at the point of closest vehicular access.” Id.
§ 1928.110(c)(2)(iv). Advanta’s detasselers worked in fields with one-half-mile to


      1
       Detasseling means removing tassels from the tops of corn stalks in designated
female rows of corn so other rows of selected male stalks will pollinate the detasseled
female stalks.

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one-mile rows of corn. Taking advantage of the Standard’s terrain exception,
Advanta placed facilities wherever Advanta could find vehicular access, knowing
detasselers would not always be within a one-quarter-mile walk of the facilities.
However, Advanta placed facilities as close to where the detasselers worked without
actually placing the facilities in the middle of the cornfields. Facilities were located
at one end of some rows and both ends of other rows. In certain fields, detasselers
were, at times, more than a one-quarter-mile walk from the facilities for twenty to
twenty-five minutes during a round trip of detasseling.

       The DOL’s Wage and Hour Division investigated Advanta’s Illinois fields, and
issued a citation to Advanta because “toilet and handwashing facilit[ies] for use by
employees engaged in hand-labor operations were not located within 1/4 [] mile walk
of each hand-laborer’s place of work in the field.” After Advanta contested the
citation, an ALJ with the OSHRC conducted a hearing on the citation. Advanta relied
on the terrain exception, arguing it is infeasible to transport toilets into a cornfield,
because it would compromise the integrity of the seed corn production process by
destroying some of the crop and the field’s “isolation,” thereby disrupting the
distribution of plants and reducing maximum pollination. The ALJ rejected
Advanta’s terrain exception defense, deciding Advanta did not prove it was infeasible
to comply with the Standard. The ALJ affirmed the “1/4 mile walk” violation and
assessed a $1,000 penalty.2 The ALJ’s decision became a final order of the OSHRC
when no commissioner granted Advanta’s petition for review. Because Advanta’s
principal place of business is in Iowa, Advanta brought its petition for review in this
court. See 29 U.S.C. § 660(a) (judicial review authorized in circuit where principal
office located).




      2
       Because this case involves the DOL’s interpretation of the Standard’s terrain
exception, further discussion of the ALJ’s decision is unwarranted.

                                          -3-
II.    DISCUSSION
       A.     Standard of Review
       We normally afford substantial deference to the DOL’s interpretation of the
Standard, but “no deference is due if the interpretation is contrary to the regulation’s
plain meaning.” In re Old Fashioned Enters., Inc., 236 F.3d 422, 425 (8th Cir. 2001).
The Supreme Court has cautioned courts to be “hesitant to substitute an alternative
reading for the [agency]’s unless that alternative reading is compelled by the
regulation’s plain language or by other indications of the [agency]’s intent at the time
of the regulation’s promulgation.” Gardebring v. Jenkins, 485 U.S. 415, 430 (1988).
“Deference is due when an agency has developed its interpretation
contemporaneously with the regulation, when the agency has consistently applied the
regulation over time, and when the agency’s interpretation is the result of thorough
and reasoned consideration.” Sioux Valley Hosp. v. Bowen, 792 F.2d 715, 719 (8th
Cir. 1986). The DOL’s interpretation is not conclusive, and we are not necessarily
bound by the DOL’s interpretation of the Standard. See Newton v. Chater, 92 F.3d
688, 693 (8th Cir. 1996). If the DOL’s interpretation of its own regulation is
unreasonable, we are free to reject it. See Staege v. United States Parole Comm’n,
671 F.2d 266, 268 (8th Cir. 1982).

      B.      DOL’s Interpretation
      Congress passed the Occupational Safety and Health Act of 1970, 29 U.S.C.
§§ 651-78, “to assure so far as possible every [worker] in the Nation safe and
healthful working conditions and to preserve our human resources.” Id. § 651(b). To
achieve these laudable goals, Congress authorized the Secretary of Labor “to set
mandatory occupational safety and health standards.” Id. §§ 651(b)(3), 655. After
years of litigation to force OSHA to issue a standard to protect agricultural workers,
see Preamble to OSHA’s Field Sanitation Standard, 52 Fed. Reg. 16050, 16050-53
(May 1, 1987); Nat’l Cong. of Hispanic Am. Citizens v. Marshall, 626 F.2d 882 (D.C.
Cir. 1979), OSHA promulgated the Standard to require employers to provide



                                          -4-
agricultural workers with basic sanitary working conditions. See 52 Fed. Reg. at
16055. The Standard states, in relevant part, the following:

             iii. Toilet and handwashing facilities shall be accessibly located
      and in close proximity to each other. The facilities shall be located
      within a one-quarter-mile walk of each hand laborer’s place of work in
      the field.

            iv. Where due to terrain it is not feasible to locate facilities as
      required above, the facilities shall be located at the point of closest
      vehicular access.

29 C.F.R. § 1928.110(c)(2). The Standard does not define the terrain exception
contained in section 1928.110(c)(2)(iv). The meaning of the term “terrain” is not
clear. Thus, we will consult the Standard’s Preamble to decipher the ambiguous
language. Cf. Albemarle Corp. v. Herman, 221 F.3d 782, 786 (5th Cir. 2000)
(Preamble consulted when regulation is ambiguous).

       When issuing the Standard in 1987, OSHA addressed the feasibility and costs
of placing toilets in the middle of fields. 52 Fed. Reg. at 16074-75. During the
rulemaking process, OSHA received no comments questioning the technological
feasibility of meeting the Standard. However, OSHA recognized special
circumstances complicated the implementation of the toilet requirement for seed
production activities. Id. at 16074. Specifically, OSHA received the following
comment from the American Seed Trade Association (ASTA)3:

      3
       ASTA, a trade organization representing approximately 800 companies
involved in seed corn production in North America, filed a brief as amicus curiae in
support of Advanta. ASTA maintains “[t]his is a case of first impression concerning
the application of the infeasibility exception due to terrain. Before this case, there has
not been an administrative or judicial challenge to the long-standing industry-wide
practice of utilizing the ‘practical solution’ of placing toilet facilities at ‘the closest
point of vehicular entry’ where ‘due to the terrain’ it is not feasible to place the

                                           -5-
             Employees in seed production activities move through a field at
      a rapid pace. In many cases, employees ride on vehicles with platforms
      and perform jobs from this location. They spend very little time in any
      one area of a field. . . . There are serious problems involved in set-up,
      servicing and pickup of these facilities. Most fields are not easily
      accessed by vehicles. Fences pose entrance and exit barriers and there
      are other crops grown contiguous to these fields.

Id. at 16074-75.

      In response to ASTA’s comment, OSHA wrote the following:

              OSHA has addressed this concern by incorporating language into
      the standard that permits the facilities to be placed at the ‘closest point
      of vehicular access’ when it is infeasible to comply with the 1/4 mile
      requirement. For example, although it is theoretically technologically
      feasible to meet the 1/4 [mile] requirement for employees working on
      mobile platforms or trailer beds (e.g., by mounting the toilet on the
      platform, by placing toilets every 1/4 mile in the field, or by towing the
      toilet along with the platform), the practical solution is to place the toilet
      at the point of vehicular entry to the field. Thus, as the employees are
      transported within the field, they will frequently have access to the
      toilet. It must be noted, however, that if the field is large and has
      multiple access points, it may be appropriate to provide more than one
      facility. OSHA has determined that compliance with this provision is
      technologically feasible.

Id. at 16075. Advanta and ASTA contend this language controls the interpretation
of the Standard’s terrain exception as it applies to seed production activities. Advanta
argues it complied with the Standard by placing facilities at the points of closest
vehicular access. The DOL contends the practical solution discussed in the Preamble
does not apply to Advanta’s seed production activities. The DOL asserts the practical


facilities any nearer to the workers.”

                                           -6-
solution only applies to detasseling operations where the employees work on moving
vehicles. Thus, the DOL asks us to focus on general language in the Preamble.

      Elsewhere in the Preamble, OSHA explained the Standard’s terrain exception
in general terms:

              In paragraph (c)(2)(iv), OSHA provides an exception to the
      requirement that facilities be located in the field by allowing facilities
      to be located at the point of closest vehicular access where, due to
      terrain, it is not feasible to locate them within a quarter-mile-walk of
      each employee. OSHA recognizes that there are some fields, located for
      example, on steep mountain sides, river deltas or wetlands and the like,
      into or on which portable facilities cannot be placed. In some of these
      locations, soil conditions may prevent, or local public health regulations
      may prohibit the use of an alternative to the portable facility, such as a
      sanitary privy. In addition, there may be rare occasions when the
      facilities temporarily cannot be placed or located in ordinary level fields
      as, for example, following unusually heavy rains that make the ground
      too soggy to support the vehicles that transport the facilities.
      Nevertheless, workers in these fields need the protection provided by
      sanitation facilities as much as workers in other fields.

            Therefore, OSHA is requiring the facilities to be placed as near as
      physically possible to the workers, which under such circumstances
      would be at the point of closest vehicular access.

Id. at 16090. The DOL argues this general language controls the interpretation of the
Standard’s terrain exception and its application to Advanta. The DOL contends the
specific language in the Preamble addressing seed production activities has no
bearing on this case. The DOL maintains Advanta can only use the terrain exception
when it can prove its seed production activities are located on extreme terrain.4

      4
       The ALJ similarly relied on the general language in the Preamble when
deciding whether Advanta proved it had complied with the terrain exception in

                                         -7-
       Simply reading the Preamble language to which the DOL directs us spawns this
question: How widespread are seed production activities on steep mountain sides,
river deltas, wetlands, or other such extreme terrain? The record does not directly
answer this inquiry, but common sense would indicate seed production on such
extreme terrain is rare, and probably non-existent. We find it curious that the DOL
focuses our attention on general language in the Preamble when OSHA in another
section of the Preamble specifically addressed the exact issue at the heart of this
appeal, i.e., the feasibility in seed production of placing toilets in the middle of fields.

       When the Standard was issued, OSHA provided a contemporaneous
explanation of how the Standard applies to seed production activities. Although
OSHA referenced employees who work on mobile platforms or trailer beds, OSHA
did not intimate the practical solution for seed production activities would not apply
when employees walked the fields. It is important to remember ASTA’s
comment–which generated OSHA’s response–focused on the practical issues
surrounding the logistics of placing facilities in seed production fields. Although
ASTA also specifically referenced employees who ride on platforms, that sentence
simply modified the first sentence, which stated “[e]mployees in seed production
activities move through a field at a rapid pace.” We cannot read this statement,
consistent with ASTA’s logistical concerns, to exclude detasselers who walk the
fields. Thus, we conclude neither ASTA nor OSHA sought to limit the application
of the practical solution to seed production activities using only riding employees.

      The DOL’s current interpretation of the Standard as it relates to Advanta
thwarts the effect of the practical solution chosen in 1987. We can find no evidence
the DOL has consistently interpreted the Standard to require seasonal seed corn



section 1928.110(c)(2)(iv). Focusing on the general language in the Preamble, the
ALJ interpreted the terrain exception to apply only to extreme terrain. The ALJ did
not even mention OSHA’s specific comment regarding seed production activities.

                                            -8-
operations to place facilities in the middle of cornfields. The DOL’s delinquent
assertion of such a position further diminishes any deference. See Gardebring, 485
U.S. at 435 (O’Connor, J., dissenting) (deference given to agency interpretation
substantially diminished when not consistent or longstanding) (quoting S.E. Cmty.
College v. Davis, 442 U.S. 397, 412 n.11 (1979)). Neither has the DOL presented
evidence or argument to establish a logical or reasonable basis for deviating from
OSHA’s 1987 specific and practical application of the Standard to seed production
field workers. We see no reason to reject OSHA’s contemporaneous explanation in
favor of the DOL’s current interpretation.5

       We also find it curious that the DOL’s interpretation of the Standard would
require a seed company to place facilities in cornfields for seasonal corn detasselers
who are never more than a half hour from a facility, while a seed company would not
have to provide facilities at all–whether in the field or at a point of closest vehicular
access–for seasonal corn detasselers who work three hours or less each day. See 29
C.F.R. § 1928.110(c)(2)(v) (“Toilet and handwashing facilities are not required for
employees who perform field work for a period of three (3) hours or less (including
transportation time to and from the field) during the day.”). The DOL’s decision to
interpret the Standard in such a confusing manner further convinces us the DOL’s
interpretation of the Standard is unreasonable and is unworthy of deference and
enforcement against Advanta.

      Based on this record, it is undisputed Advanta placed facilities at the points of
closest vehicular access. Since Advanta complied with the Standard as reasonably



      5
       By all indications, OSHA allowed common sense to prevail in 1987 by
authorizing a practical solution by not forcing seed companies to place facilities in
the middle of cornfields for the benefit of seasonal detasselers. In 1764, Voltaire
remarked “[c]ommon sense is not so common.” John Bartlett, Familiar Quotations
343:18 (15th ed. 1980). Voltaire’s observation still rings true.

                                          -9-
interpreted by OSHA when OSHA issued the standard in 1987, the citation against
Advanta cannot stand.

III.  CONCLUSION
      We decide the DOL’s unreasonable interpretation of the Standard’s application
to Advanta in this case requires reversal. Thus, we grant Advanta’s petition, vacate
the OSHRC’s order, and set aside the citation against Advanta.
                       ______________________________




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