United States Court of Appeals

For the Eighth Circuit

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No. 17-2647

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Wal-Mart Stores East, LP, doing business as

Walmart Distribution Center # 7035

lllllllllllllllllllllPetitioner

v.

 Alexander Acosta, Secretary of Labor

lllllllllllllllllllllRespondent

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Petition for Review of an Order of the

 Occupational Safety and Health Review Commission

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Submitted: September 26, 2018

Filed: March 28, 2019

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Before COLLOTON, BEAM, and GRASZ, Circuit Judges.

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GRASZ, Circuit Judge.

TheOccupational Safetyand HealthAdministration (“OSHA”) cited Wal-Mart

Stores East, L.P., doing business as WalMart Distribution Center #7035 (“WalMart”), for two purported violations of OSHA’s regulation relating to bloodborne

pathogens, 29C.F.R. § 1910.1030. More specifically,OSHAalleged Wal-Mart failed

to comply with regulations pertaining to providing hepatitis B vaccinations to
employees who voluntarily served on a Serious Injury Response Team (“SIRT”) at

Wal-Mart’s Alachua, Florida, distribution center (the “Alachua DC”). We deny WalMart’s petition and affirm the agency order.

I. Background

OSHA’s bloodborne pathogen regulation includes health standards related to

the prevention of the transmission of hepatitis B in the workplace. See 29 C.F.R.

§ 1910.1030(f). The regulation directs employers such as Wal-Mart to, among other

things, “make available the hepatitis B vaccine and vaccination series to all

employees who have occupational exposure, and post-exposure evaluation and

follow-up to all employees who have had an exposure incident.” Id.

§ 1910.1030(f)(1)(i). “Occupational Exposure means reasonably anticipated skin,

eye, mucous membrane, or parenteral contact with blood or other potentially

infectious materials that may result from the performance of an employee’s duties.”

Id. § 1910.1030(b). 

The parties agree members of the SIRT team — employees who would

volunteer as a secondary duty to respond to medical incidents and provide routine

first-aid care unless and until emergency personnel (if necessary) arrived at the scene

— were employees who had occupational exposure. As a result, Wal-Mart was

required under the regulation to make the hepatitis B vaccine and vaccination series

available to them. Id. § 1910(f)(1)(i).

 

The regulation generally required Wal-Mart to make the hepatitis B vaccine

available to willing SIRT members after they were provided certain information

related to hepatitis B, including the benefits of vaccination, but “within 10 working

days of initial assignment.” Id. § 1910.1030(f)(2)(i); see also id. § 1910(g)(2)(vii)(I). 

If an employee elected vaccination, the regulation further required Wal-Mart to

ensure the hepatitis B vaccine and vaccination series was “[p]rovided according to

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recommendations of the U.S. Public Health Service current at the time these

evaluations and procedures take place, except as specified” by the terms of the

regulation. Id. § 1910.1030(f)(1)(ii)(D). 

As explained in OSHA’s summary and explanation ofthe standard, the Centers

for Disease Control and Prevention (“CDC”)isthe U.S. Public Health Service agency

“responsible for issuing guidelines and making recommendations regarding . . .

bloodborne pathogens.” Occupational Exposure to Bloodborne Pathogens, 56 Fed.

Reg. at 64004, at 64153 (Dec. 6, 1991). In 2006, the CDC’s Advisory Committee on

Immunization Practices issued a report providing guidance and recommendations to

increase hepatitis B vaccinations for adults. See A Comprehensive Immunization

Strategy to Eliminate Transmission of Hepatitis B Virus Infection in the United

States, Recommendations of the Advisory Committee on Immunization Practices

(ACIP) Part II: Immunization of Adults, 55 Morbidity and Mortality Weekly Report,

No. RR-16 (Dec. 8, 2006), https://www.cdc.gov/mmwr/indrr_2006.html. The CDC

recommends certain adults age twenty and older receive a three-shot vaccination

series, with the second shot to be given within one to two months after the first shot

and the third shot to be given four to six months after the first shot. Id. at 15. 

After receiving complaints about the Alachua DC’s safety program, OSHA

conducted an inspection of the facility between late September 2015 and early

January 2016. The inspector determined, through a review of documentation and

interviews, that Wal-Mart violated § 1910.1030(f), and issued Wal-Mart two

citations.

The first citation alleged a serious violation of § 1910.1030(f)(1)(ii)(D)

(“Citation One”) and proposed a fine of $5,000, asserting five SIRT members were

“potentially exposed with an occupational exposure to bloodborne pathogens because

the employer did not provide the [h]epatitis B vaccination series in accordance with

the recommendations of the U.S. Public Health Service, exposing these employees

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to contracting the [h]epatitis B virus.” The second citation alleged a repeat violation

of § 1910.1030(f)(2)(i) (“Citation Two”) and proposed a fine of $25,000, asserting

Wal-Mart did not offer eight employees the hepatitis B vaccine within ten working

days of assignment to the SIRT team.

Wal-Marttimelycontested the citation and notification of penalty, and a United

States Department of Labor Administrative Law Judge (“ALJ”) presided over a oneday hearing. Six witnesses testified, including an OSHA inspector, two members of

the SIRT team, Wal-Mart’s former and current Asset Protection Area Managers, and

Wal-Mart’s senior director of compliance and safety. 

The ALJ issued a decision and order concluding the Secretary of Labor

(“Secretary”) had met his burden to establish Wal-Mart had committed both alleged

violations of the regulation. The ALJ reclassified Citation One’s violation as “other

than serious” and reduced the penalty to $1,000. The ALJ imposed a penalty of

$25,000 for Citation Two.

Wal-Mart petitioned for discretionary review with the Occupational Safety and

HealthReview Commission (“Commission”), and theSecretary filed a cross-petition.

The Commission took no action on either petition making the ALJ decision the

agency’s final order. Wal-Mart filed a petition for review with this court and asks us

to vacate both citations. 

II. Analysis

Wal-Mart advances a number of argumentsin support of vacating the citations. 

In considering these arguments, we must uphold the ALJ’s factual findings so long

as they are “supported by substantial evidence on the record considered as a whole.” 

29 U.S.C. § 660(a); accord Perez v. Loren Cook Co., 803 F.3d 935, 938 (8th Cir.

2015) (en banc); Dakota Underground, Inc. v. Sec’y of Labor, 200 F.3d 564, 566 (8th

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Cir. 2000) (applying the substantial evidence standard to an ALJ’s finding made after

the Commission denied discretionary review). And we will uphold the ALJ’s “legal

conclusions ‘unless they are arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.’” Loren Cook, 803 F.3d at 938 (quoting Solis v. Summit

Contractors, Inc., 558 F.3d 815, 823 (8th Cir. 2009)).

A.

Wal-Mart attacks the validity of both citations based on its assertion that

OSHA’s own enforcement procedures dictate OSHA should not have issued either

citation because Wal-Mart fit within what it terms the collateral duty exemption. This

“exemption” isset forth in OSHA Directive CPL2-2.69, which provides Enforcement

Procedures for the Occupational Exposure to Bloodborne Pathogens (“BBP

Enforcement Procedures”).

TheBBP Enforcement Procedures were issued with the purpose of establishing

policies and clarifications to ensure uniform inspection procedures. The policy

provides that citations should be issued for employers who have not offered the

hepatitis B vaccine to first aid providers (who have occupational exposure) before

those workers are exposed to hepatitis B. An exemption is carved out for instances

when the following three conditions are met:

a. The primary job assignment of such a designated first aid provider is

not the rendering of first aid or other medical assistance, and 

b. Any first aid rendered by such person isrendered only as a collateral

duty, responding solely to injuries resulting from workplace incidents,

generally at the location where the incident occurred. NOTE: This

exception does not apply to designated first aid providers who render

assistance on a regular basis, for example, at a first aid station, clinic,

dispensary or other location where injured employees routinely go for

assistance; nor does it apply to any healthcare, emergency, or public

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safety personnel who are expected to render first aid in the course of

their work. These employees must be offered the vaccine prior to

exposure.

c. The employer’s exposure control plan must specifically address the

provision of the hepatitis B vaccine to all unvaccinated first aid

providers who render assistance in any situation involving the presence

of blood or OPIM (regardless of whether an actual “exposure incident”

as defined by the standard occurred) and the provision of appropriate

post-exposure evaluation, prophylaxis, and follow-up for those

employees who experience an “exposure incident.” 

BBP Enforcement Procedures, at XIII.F.8.

Wal-Mart contends this exemption required OSHA to forgo issuing a citation

(or at least classify the citations as de minimis) because Wal-Mart proved each of the

listed conditions were true as to the relevant SIRT members. We disagree because

substantial evidence supports the ALJ’s finding that Wal-Mart failed to show the

conditions in subparagraph b. of the BBP Enforcement Procedures were satisfied.

The ALJ reasoned the collateral duty exception did not apply here, in part

because SIRT employees did not respond to workplace injuries “generally at the

location where the incident occurred” as subparagraph b. requires. In contrast, the 1

The ALJ also reasoned the collateral duty exemption did not have the force 1

and effect of law because the BBP Enforcement Procedures reflect a policy

implemented by the Secretary as an exercise of his discretionary power. Compare

Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1986) (Scalia,

J.) (holding a Mine Safety Health Administration enforcement policywas not binding

against the Secretary in part because it would interfere with the Secretary’s

enforcement discretion, which is “an area in which the courts have traditionally been

most reluctant to interfere”), with GoJet Airlines, LLC v. FAA, 743 F.3d 1168, 1173

(8th Cir. 2014) (explaining the court would not apply a presumption of

unreviewability in certain circumstances, including “if the agency has made clear its

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ALJ found the “undisputed testimony established the great majority of the first aid

administered by the SIRT team occurs in the SIRT Room” — a first-aid room

separated from the main work area by a set of double doors. 

From our review of the record, we conclude substantial evidence supports the

ALJ’s finding. “Substantial evidence is relevant evidence that a reasonable person

might accept as adequate to support a conclusion.” Omaha Paper Stock Co. v. Sec’y

of Labor, 304 F.3d 779, 782 (8th Cir. 2002). This standard is met here. Two SIRT

team members testified that when they received notification of a medical incident,

they almost always responded by going to the SIRT room. Testimony and exhibits

also established the SIRT room was labeled “FIRST AID ROOM,” was separated

from the warehouse by double doors, and was described as “the image of a modernday clinic,” in that it was well-stocked with medical supplies, a patient cot, and other

things typically found in a clinical setting. Considering this evidence, we find no

basis to disturb the ALJ’s factual finding that SIRT employees did not respond to

injuries “generally at the location where the incident occurred.” The ALJ did not

abuse its discretion in rejecting Wal-Mart’s broad interpretation of the exemption.

B.

We next address Wal-Mart’s contention that we should vacate Citation One,

which charged Wal-Mart with violating the standard by failing to provide the

hepatitis B vaccination series to SIRT members in accordance with the CDC’s

recommendations. 

 

intent that a policy statement or set of enforcement guidelines impose binding

limitations on the exercise of its enforcement discretion”). We need not decide today

whether OSHA’s inclusion of the collateral duty exemption in its BBP Enforcement

Procedures could bind OSHA in the appropriate case because of our holding on

alternative grounds. 

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The standard requires all employers to make sure the hepatitis B vaccine and

vaccination series are “[p]rovided according to recommendations of the U.S. Public

Health Service current at the time these evaluations and procedurestake place, except

as specified” in the regulation. 29 C.F.R. § 1910.1030(f)(1)(ii)(D). The CDC’s

recommendations set forth a timetable for completing the three-shot hepatitis B

vaccination series with the third shot to be given four to six months after the first

shot. 

Because Wal-Mart did not provide four SIRT members with the third dose of

the vaccine (at least until after the inspection), the ALJ held Wal-Mart violated the

standard. We generally agree with the ALJ’s assessment. The undisputed evidence

shows Wal-Mart’s supervisor of the SIRT team knowingly failed to provide four

SIRT membersthe third dose of the vaccine until after the inspection. As a result, the

lapse between the second and third doses for these employees ranged from

twenty-one to twenty-four months, which far exceeded the range recommended by

the CDC. Substantial evidence therefore supports the ALJ’s determination that the

hepatitis B vaccine and vaccination series was not “[p]rovided according to

recommendations of the U.S. Public Health Service.”

Wal-Mart makesseveral arguments asto why the ALJ’s conclusion was wrong. 

Our authority to review this petition is generally limited, however, to those objections

raised to the Commission. See 29 U.S.C. § 660(a) (“No objection that has not been

urged before the Commission shall be considered by the court, unless the failure or

neglect to urge such questions shall be excused because of extraordinary

circumstances.”); Dakota Underground, 200 F.3d at 567 (holding the petitioner

“waived its argument . . . because it did not raise the issue in its application to the

Review Commission” and the petitioner failed to identifyextraordinarycircumstances

justifying such failure or neglect); Frank Lill & Son, Inc. v. Sec’y of Labor, 362 F.3d

840, 844 (D.C. Cir. 2004) (concluding challenges to an ALJ determination were

waived and explaining that because of § 660’s prohibition, circuit courts have

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uniformly held there is no jurisdiction to entertain objections not raised in the petition

for discretionary review to the Commission). 

In its Petition for Discretionary Review directed to the Commission, WalMart’s only objection to the ALJ’s interpretation of § 1910.1030(f)(1) was based on

an assertion the ALJ’s conclusion rests on a flawed interpretation of the regulation

that improperly transformed the CDC’s recommendations into mandatory

requirements. BecauseWal-Mart has not identified any extraordinary circumstances 2

giving us reason to excuse its failure to raise to the Commission its other arguments

advanced to this court, we limit our consideration to this issue. See Dakota

Underground, 200 F.3d at 567.

The central premise of Wal-Mart’s argument properly before us is that the

ALJ’s interpretation of § 1910.1030(f)(1)(ii)(D) violates canons of statutory

interpretation because it disregards and renders superfluous the word

“recommendation” present in the CDC guidance document. See, e.g., United States

v. Gomez-Hernandez, 300 F.3d 974, 979 (8th Cir. 2002) (recognizing “the principle

that courts avoid a statutory construction that would render another part of the same

statute superfluous”). Wal-Mart also claims the Secretary’s interpretation runs afoul

of a “well-settled” rule that “the Secretary cannot make a recommendation

enforceable simply by substituting the word shall for should.” 

Wal-Mart also stated in a footnote to its argument before the Commission,

2

“The ALJ’s decision, requiring that employers follow recommendations of a different

agency with no rule-making authority, may constitute an impermissible delegation of

authority, in violation of the Administrative Procedures [sic] Act and due process.”

Wal-Mart included the same footnote in its briefing to this court. In neither document

did Wal-Mart develop any argument or offer any authority to support this suggestion

and so we decline to consider it. See United States v. Zavala, 427 F.3d 562, 564–65

& n.1 (8th Cir. 2005) (relying on Fed. R. App. P. 28 and holding an appellant

abandoned an issue merely mentioned in briefing because he failed to offer any

reasons or arguments in support of his argument). 

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Neither of these arguments are persuasive. While it is true the guidelines as

issued by the CDC are voluntary and not enforceable by the CDC or the U.S. Public

Health Service, they were incorporated into the BBP standard as mandatory

requirements. The regulation expressly states “the employer shall ensure that all . . .

vaccination series . . . are provided in accordance with [CDC] recommendations.” 29

C.F.R. § 1910.1030(f)(1)(ii)(D). Contrary to Wal-Mart’s contention, we are not

aware of any authority or rule that would categorically forbid the Secretary from

making it mandatory to follow recommendations.3

Wal-Mart cites authority involving 29 U.S.C. § 655(a) to argue for a limitation

on OSHA’s power in 29 U.S.C. § 655(b). The Commission and several circuits have

recognized that standards adopted under section 6(a) of the Act — which permitted

the Secretary for a limited time to adopt existing national consensus and established

federal standards as OSHA standards without going through the formal rulemaking

process — could not change an American National Standards Institute (“ANSI”)

recommendation into a mandatory requirement. See, e.g., Marshall v. Union Oil Co.

of Cal., 616 F.2d 1113, 1115–16 (9th Cir. 1980); Marshall v. Pittsburgh-Des Moines

Steel Co., 584 F.2d 638, 643–44 (3d Cir. 1978); Usery v. Kennecott Copper Corp.,

577 F.2d 1113, 1117–18 (10th Cir. 1977); William B. Hopke, Co., 12 BNA OSHC

2158 (No. 81-206, 1986). These cases recognized, however, OSHA could enforce

such a mandatory standard so long as the Secretary promulgated the regulation using

the formal rule-making proceduresset forth in section 6(b) of the Act. See Kennecott,

This case does reveal some practical difficulties with incorporating

3

recommendations and guidelines into a mandatory standard. For instance, Wal-Mart

complains the recommended range in dosing schedules are vague and do not provide

sufficient notice to employers as to what is required. Wal-Mart further plausibly

argues there is reason to interpret CDC’s timetable as providing minimum (as

opposed tomaximum) intervals between doses. BecauseWal-Mart did not raise these

objections in its petition to the Commission, however, these arguments are not

properly before this court and we express no opinion as to their merits. 

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577 F.2d at 1118 (“In order for the Secretary to have rendered the standard

enforceable with the change in language, he was obliged to observe the rulemaking

procedures contained in the Act.”). Here, since the Secretary promulgated

§ 1910.1030 under section 6(b) of the Act and thus went through the notice-andcomment rule-making procedure, the regulation’s incorporation of the CDC

recommendations does not implicate the same problems recognized in Kennecott and

its progeny. 

Based on the record and arguments properly before us, we conclude substantial

evidence supports the ALJ’s decision to uphold Citation One. 

C.

We next address Wal-Mart’s challenges specific to Citation Two, which

charged Wal-Mart with violating § 1910.1030(f)(2)(i) by failing to offer certain

employees the hepatitis B vaccine within ten working days of assignment to the SIRT

team. Wal-Mart challenges both the evidence supporting the ALJ’s conclusion WalMart violated the regulation and also the ALJ’s classification of the violation as a

“repeat” violation. Neither argument is meritorious.

The ALJ found the Secretary established Wal-Mart failed to make the hepatitis

B vaccine available to certain SIRT volunteers within ten working days of

assignment. The ALJ relied on two types of evidence to reach this conclusion. First,

the ALJ relied on testimony fromWal-Mart’s AP manager in charge ofthe SIRT team

during the relevant time period, who conceded he failed to offer the vaccine to certain

SIRT volunteers after they had completed their training. The ALJ also relied on

documentary evidence suggesting members of the SIRT team were never offered

immunization. This inference was created by comparing a roster of SIRT members

with documentation maintained by Wal-Mart (as required by regulation, 29 C.F.R.

§ 1910.1030(h)(i) and (ii)), which showed who had either completed immunization

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or declined immunization. If there was no such documentation from a known SIRT

member showing either immunization or declination, the ALJ inferred Wal-Mart did

not offer it to them. 

 

Wal-Mart argues that by considering the lack of documentation, the ALJ in

effect improperly shifted the burden of proof away from the Secretary to Wal-Mart.

Instead of requiring the Secretary to meet its burden of proving Wal-Mart did not

comply with the standard, Wal-Mart complains the ALJ required it to prove it did

comply. We reject this argument because it failsto consider the testimony from WalMart’s AP manager, who testified that despite knowing SIRT members had to be

offered the vaccination and that he was responsible for ensuring compliance, he “did

not comply with those responsibilities.” Combined with the gaps in documentation

indicating multiple SIRT members were not offered vaccinations, we conclude

substantial evidence supports the ALJ’s finding that Wal-Mart violated

§ 1910.1030(f)(2)(i).

This leaves one final argument for usto consider — Wal-Mart’s contention the

ALJ erred by designating its violation of § 1910.1030(f)(2)(i) as a repeat violation. 

Congress provided that an “employer who . . . repeatedly violates the requirements

of . . . any standard . . . promulgated pursuant to section 655 of this title, or

regulations prescripted pursuant to this chapter may be assessed a civil penalty of not

more than $70,000 for each violation, but not less than $5,000 for each willful

violation.” 29 U.S.C. § 666(a). 

Both parties cite to a Commission case as setting the standard for proving a

citation should be classified as “repeat.” See Potlatch Corp., 7 BNA OSHC 1061,

1063 (No. 16813, 1979). Under Potlatch, “the Secretary makes a prima facie

showing that a violation is ‘repeat’ if the prior and present violations are for failure

to comply with the same standard.” Manganas Painting Co.v. Sec’y of Labor, 273

F.3d 1131, 1135 (D.C. Cir. 2001) (applying Potlatch). “The burden then shifts to the

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employer to demonstrate that the violationstook place under disparate conditions and

hazards associated with the separate violations.” Id.

TheALJ determined the violation was a repeat violation becauseWal-Mart had

entered into a Commission-approved stipulated settlement with the Secretary

upholding a serious violation of § 1910.1030(f)(2)(i) in January 2012 at a store in

Rochester, New York. The ALJ determined Wal-Mart failed to rebut the presumption

these violations were substantially similar. We agree, even though the 2012 citation

wasfor a violation at a Wal-Mart store, as opposed to a Wal-Mart distribution center. 

There is no allegation the store and the distribution center are owned by separate

entities. See Wal-Mart Stores, Inc. v. Sec’y of Labor, 406 F.3d 731, 737 (D.C. Cir.

2005) (holding a repeat citation was warranted for a second violation of the same

standard at a different store because they were owned by the same corporation). And

Wal-Mart has failed to articulate through record evidence how the failure to offer the

hepatitis B vaccine to the SIRT employees resulted in a different hazard than occurred

from the failure to offer the vaccine to the retail store employees in 2012. Indeed,

both classes of employees faced the same hazard — contraction of hepatitis B without

vaccination — as a result of the violation. Accordingly, the repeat designation is

affirmed. 

III. Conclusion 

For the foregoing reasons, we deny Wal-Mart’s petition.

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