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American Society of Safety Professionals is your source for insights on trends in the safety profession, including developments in safety management, worker safety, government and regulatory affairs and standards.

 

Court of Appeals Upholds OSHA 6(a) Construction Standard

Gary Visscher, J.D., Of Counsel, Law Office of Adele Abrams P.C.
Jun 18, 2020

In a case watched for its potentially broad effect on OSHA standards, the U.S. Court of Appeals for the District of Columbia held that OSHA’s process in adopting “start-up standards” in 1971, many of which OSHA still enforces, was permissible and the standards may be enforced.  

Case Background

The case, Kiewit Power Constructors v. Secretary of Labor, D.C. Cir., 5/15/2020, requires a brief background. In enacting the OSH Act of 1970, Congress required that OSHA must follow “notice and comment” rulemaking procedures when adopting new occupational safety and health (OSH) standards.

However, because Congress anticipated that adoption of new standards was likely to take time, Congress gave OSHA authority, in section 6(a), to promulgate as an OSH standard “any national consensus standard and any established federal standard.”

Standards issued under section 6(a) were exempt from the Administrative Procedures Act, as well as the notice and comment procedures under section 6(b) of the OSH Act. The authority to issue standards under section 6(a) expired 2 years after the OSH Act was enacted. 

In 2011, OSHA cited Kiewit Power for a violation of 29 CFR 1926.50(g), which requires eye/body wash facilities when “the eyes or body of any person may be exposed to injurious corrosive materials.” The source for that standard was an “established federal standard” issued under the Walsh-Healey Act and adopted as an OSH standard under section 6(a) in 1971.

The Walsh-Healey Act applied only to manufacturers doing more than $10,000 of business with the federal government; therefore, as a Walsh-Healey standard, 29 CFR 1926.50(g) applied only to a small number of employers. However, in adopting “established federal standards” as OSH standards, OSHA announced that those standards “may apply to every employment and place of employment exposed to the hazards covered by the standard.” Thus, the eye/body wash facility became a requirement for construction employers, and the separate construction standard was later codified at 1926.50(g).  

Kiewit Power contested the citation, arguing that the cited standard was invalid because the extension of the eye/body wash requirement to construction was inconsistent with the authority given to OSHA in section 6(a). An administrative law judge agreed with Kiewit’s argument and granted Kiewit’s motion to dismiss. On appeal, the commission, by a 2-1 decision, agreed that the standard was invalid (Kiewit Power Constructors, 9/28/2018).

The Court of Appeals Decision

The Court of Appeals reversed the commission's decision. The court found that the OSH Act is ambiguous on the question of whether section 6(a) authorized OSHA to apply Walsh-Healey standards, such as the eye/body wash standard, to industries beyond those covered by Walsh-Healey standards. Applying “familiar principles of administrative law,” the court concluded that “the Secretary’s interpretation of his section 6(a) authority is permissible and therefore [is] owed deference by the Commission.”

Previous court decisions have held that section 6(a) did not allow OSHA to make substantive modifications to “established federal standards” when OSHA adopted those standards as OSH standards. In its 2018 decision vacating the citation against Kiewit, the commission held that by expanding the scope of the eye/body wash requirement to construction employers, OSHA had made a substantive modification to the standard that was not authorized by section 6(a). 

In its ruling, the Court of Appeals noted that it was clear (and not disputed by Kiewit) that some modification of the Walsh-Healey and other established federal standards was allowed under section 6(a). “The question, then, is whether the challenged standards were required to carry over their source-standards’ industry-centric scopes.”

The court reviewed the legislative history as well as the arguments by Kiewit and the commission’s decision. “Our careful review of the OSH Act’s less-than-pellucid legislative history and the Secretary’s frequently muddled regulatory efforts has not clarified matters.” It concluded that “whether the quick-drenching provision was properly extended to the construction industry remains a question with no obvious answer. . . . Although it is plausible that Congress intended standards adopted under section 6(a) to extend only to employers within the same industry as their source standard, the Secretary’s interpretation is nevertheless a permissible construction of the OSH Act. ‘Step two of [the Supreme Court’s Chevron doctrine] does not require the best interpretation, only a reasonable one.’”  

The commission’s 2018 decision finding that 1926.50(g) had been illegally adopted by OSHA in 1971 had put in doubt the validity of several OSHA standards that were similarly adopted as “6(a) standards.” At least 145 other construction standards have histories similar to the eye/body wash standard, and the commission’s rationale also put in question the legality of 6(a) standards in maritime and even general industry 6(a) standards as applied to business sectors outside of manufacturing and supply.

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