OSHRC Agrees with Ogletree Deakins’ Argument That Construction Eyewash Standard Is Invalid

On September 28, 2018, the independent Occupational Safety and Health Review Commission (OSHRC) agreed with Ogletree Deakins’ argument that the Occupational Safety and Health Administration’s (OSHA) standard requiring emergency eye-flushing and body-washing facilities on construction sites is invalid.

Ogletree Deakins (appearing through this writer) represented a construction company that allegedly had violated 29 C.F.R. § 1926.50(g), the eyewash and shower standard, because in OSHA’s opinion the company’s eyewash stations were not close enough to construction work using certain substances. The company disputed this and contested the citation. Among its arguments was that the construction eyewash standard had not been validly adopted.

After an administrative law judge agreed that the standard was invalid, OSHA appealed to the three OSHRC commissioners, after which the parties filed briefs and, unusual for the Commission, orally argued the case. The Commission, in a 2–1 decision, rejected OSHA’s arguments and agreed with those of Ogletree Deakins that OSHA’s construction eyewash standard was invalid.

Background

The background of the dispute is complex, but the issue itself is simply stated: when Congress authorized OSHA to adopt certain startup standards without notice-and-comment rulemaking, did it also authorize OSHA to change the standards by applying them to different industries—industries that never had an opportunity to comment on them?

When Congress passed the Occupational Safety and Health Act (OSH Act) in 1970, it wanted OSHA to get a running start on enforcement, so it authorized OSHA to adopt two kinds of startup standards. The first kind was national consensus standards, such as those published by the American National Standards Institute (ANSI) and the National Fire Protection Association (NFPA), which had already achieved wide industry acceptance. The second kind was established federal standards—standards that had already gone through rulemaking under other federal statutes. These other statutes included the Construction Safety Act (applicable to government construction contracts), the Walsh-Healey Public Contracts Act (applicable to goods manufactured for the government), and the Longshore and Harbor Workers’ Compensation Act (LHWCA) (applicable to the navigable waters of the United States). All agree that Congress intended that these startup standards would apply under the OSH Act without regard to their previous limitations to government contracting or navigability.

But what about those standards’ original limitations to construction, manufacturing and maritime employment? Did Congress intend that OSHA would strip away those limitations too? Would maritime standards apply also to manufacturing or agriculture? Would construction standards apply also to manufacturing? Would manufacturing standards apply also to construction or diving? Would chaos reign?

OSHA’s immediate—and sensible—answer was no.  When OSHA first adopted the startup standards as OSHA standards on May 29, 1971, it adopted regulations that continued to limit the established federal standards to the industries they originally were designed to regulate.

Thus, the construction standards adopted under the Construction Safety Act would continue to apply only to construction; the maritime standards adopted under the LHWCA would continue to apply only to maritime work; and, crucially for this case, the manufacturing standards derived from the Walsh-Healey Act would continue to apply only to manufacturing. The regulation that so limited the Walsh-Healey Act-derived manufacturing standards was 29 C.F.R. § 1910.5(e).

But several months later, OSHA changed its mind. Without any explanation, without giving the public an opportunity to comment, and without finding that manufacturing standards could feasibly be applied to construction work, on September 9, 1971, OSHA revoked § 1910.5(e), the regulation that had limited the Walsh-Healey Act-derived standards in Part 1910 to manufacturing. The notice of revocation of § 1910.5(e) was so short, abstrusely worded, and obscurely placed in the Federal Register, and the OSH Act was then so young, that employers failed to notice that OSHA had violated what would soon be recognized as a cardinal rule governing OSHA’s adoption of startup standards—that it was not permitted to substantively change them without rulemaking. Substantively changing them would mean that OSHA was not adopting the startup standards, but rather standards of its own invention.

An Ogletree Deakins attorney, however, did spot OSHA’s obscure 1971 move and challenged its validity.

The Commission’s Decision

The Commission majority agreed with Ogletree Deakins that OSHA’s revocation in September 1971 of § 1910.5(e) was unlawful and that the eyewash standard written for manufacturing sites under the Walsh-Healey Act could not be validly applied to construction without undergoing notice-and-comment rulemaking. “We conclude that section 6(a) did not authorize the Secretary to apply the [Walsh-Healey] quick-drenching standard to construction employers without notice-and-comment rulemaking.”

In so concluding, the Commission agreed with several of Ogletree Deakins’ main arguments, including arguments relying on 5 U.S.C. § 559, the anti-supersession provision of the Administrative Procedure Act, and the legislative history of the OSH Act. For example, the Commission agreed with Ogletree Deakins that “[a]pplying the Secretary’s interpretation here would allow him to adopt and apply a [Walsh-Healey Act manufacturing] standard to an entirely different industry, one that had no reason or incentive to participate in its original promulgation because it was not affected by the rulemaking. Depriving the construction industry of its ‘opportunity to participate’ in the rulemaking process is contrary to the OSH Act’s language and intent.”

The Commission also adopted another Ogletree Deakins argument when it noted “the absurdities that could result from [the Secretary’s] proposed interpretation of section 6(a)—for example, that maritime or shipbuilding standards could be applied to the manufacturing industry, or construction standards could be applied to the agricultural industry.”

Commissioner Attwood dissented.

Implications of the Decision

The most immediate implication of the decision for employers performing construction work is that they may no longer be cited under any OSHA eyewash or shower standard derived from the Walsh-Healey Act manufacturing standard; this includes both § 1926.50(g) and § 1910.151(c). There may be other standards in the same position.

The case is Secretary of Labor v. Kiewit Power Constructors Co., No. 11-2395 (issued September 28, 2018).