UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 11‐2395

KIEWIT POWER CONSTRUCTORS CO.,

Respondent.

OPENING BRIEF ON REVIEW OF

KIEWIT POWER CONSTRUCTORS CO.

Arthur G. Sapper

James A. Lastowka

McDERMOTT WILL & EMERY LLP

500 North Capitol Street NW

Washington, D.C. 20001‐1531

(202) 756‐8246

Attorneys for Respondent,

Kiewit Power Constructors Co.
            TABLE OF CONTENTS Page

i

I. Statement of the Case .......................................................................................................... 1

II. Record and Incorporated Arguments............................................................................... 1

III. Statutory and Regulatory Background............................................................................. 2

A. The Cited Standard, 29 C.F.R. § 1926.50(g)............................................................... 2

B. The Walsh‐Healey Public Contracts Act................................................................... 3

C. The Construction Safety Act. ...................................................................................... 6

D. The Occupational Safety and Health Act of 1970. ................................................... 8

1. The ACCSH Subcommittee, and Its 1974 Revolt............................................ 11

2. The 1979 “Notice of Enforcement Policy” ....................................................... 13

3. The 1993 Verticalizations.................................................................................... 13

IV. Argument............................................................................................................................ 15

A. § 1926.50 Is Invalid. .................................................................................................... 15

1. Nothing in the OSH Act, “Express” or Otherwise, Indicates That

Established Federal Standards Could Be Applied “To The Extent” of

Applying to Different Work. It Shows the Contrary...................................... 15

a. The Senate Report Passage Does Not Supply “Express” Evidence

That Established Federal Standards Could Be Summarily

Applied “To The Extent” That They Would Apply to Different

Work. On the Contrary, It Refutes OSHA’s Position.............................. 19

b. The WHA Standards Applied Only to Manufacturing. ......................... 23

c. The Case Law Cited By OSHA Is Inapposite........................................... 24

d. The Revocation of § 1910.5(e) Was Invalid For Other Reasons............. 28

e. OSHA Was Not Authorized By § 4(b)(2) To Apply The WHA

Standards To Construction. ........................................................................ 30

2. OSHA Has The Burden of Proving That The 1993 Adoption of

§ 1926.50(g) Fell Within An Exception to Rulemaking Requirements. ....... 33

a. Inasmuch as OSHA’s Statement of Good Cause Failed to Show

That § 1910.151(c) Applied to Construction, OSHA Failed To

Show Good Cause for Asserting That Its Action “Does Not

Affect the Substantive Requirements...of the Standards.” .................... 34
            TABLE OF CONTENTS Page

ii

(i) Counsel’s Attempt to Prove The Applicability of the WHA

Standards to Construction Is Procedurally Improper and

Meritless. ................................................................................................ 34

(ii) Sections 1910.5(c)(2) and 1910.11(a) Could Not Have

Authorized The Extension of WHA Standards To

Construction. ......................................................................................... 35

b. The 1993 Preamble’s Vague Allusion to § 1910.5(c) Does Not

Show “Good Cause” for Dispensing with Rulemaking. ........................ 36

3. The Public Was Entitled To Comment on Whether § 1910.151(c) Was

“Appropriate” To Apply to Construction. The “Good Cause”

Exception Did Not Permit OSHA to Make Substantive Judgments

Without Public Participation. ............................................................................ 40

4. In 1993, OSHA Had No Authority to Dispense With Notice‐And‐

Comment Rulemaking Or Rulemaking Findings........................................... 45

B. Item 1 Must Alternatively Be Vacated Because OSHA Did Not Produce

Evidence Showing That It Could Satisfy Its Burden of Proof.............................. 46

V. Conclusion .......................................................................................................................... 48

Certificate of Service................................................................................................................. 49

Addendum A:  Rulemaking History of 41 C.F.R. § 50‐204.6(c), 29 C.F.R.

§ 1910.151(c), and 29 C.F.R. § 1926.50(g) ......................................................................A‐1

Addendum B:  Index to Rulemaking Record.......................................................................B‐1

Addendum C: Table of Contents of Appendix (on CD‐ROM) ........................................ C‐1
         TABLE OF AUTHORITIES Page

Authorities upon which we chiefly rely are marked with asterisks. 

iii

Cases

Abbs v. Sullivan, 756 F.Supp. 1172 (W.D. Wis. 1990), vac. on juris. grnds,

963 F.2d 918 (7th Cir. 1992) ................................................................................................. 18

Action on Smoking & Health v. CAB, 713 F.2d 795 (D.C. Cir. 1983) ..................................... 33

AFL‐CIO v. OSHA, 965 F.2d 962 (11th Cir. 1992).................................................................... 3

Alaska Professional Hunters Ass’n v. FAA, 177 F.3d 1030 (D.C. Cir. 1999) .......................... 28

All Erec. & Crane Rental Corp. v. OSHRC, 2012 WL 6028627 (6th Cir. 2012)...................... 46

Am. Mining Congress v. MSHA, 995 F.2d 1106, 1108‐13 (D.C. Cir. 1993)........................... 28

Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 (1981) ........................................................... 3

American Can Co., 10 BNA OSHC 1305 (No. 76‐5162, 1982)...................................... 4, 25, 31

Ark. Game & Fish Comm. v. United States, 568 U.S. _ (2012) ................................................. 27

Armour & Co. v. Wantock, 323 U.S. 126 (1944)........................................................................ 25

Atl. Battery Co., 16 BNA OSHC 2131 (No. 90‐1747, 1994).................................................... 48

Bechtel Power Corp., 4 BNA OSHC 1005 (No. 5064, 1976), aff’d, 548 F.2d 248

(8th Cir. 1977)........................................................................................................................ 26

Brecht v. Abrahamson, 507 U.S. 619 (1993)............................................................................... 40

Brown & Root Inc., 9 OSHC 1833, 1839 (No. 76‐190, 1981)............................................. 39, 40

Buschmann v. Schweiker, 676 F.2d 352 (9th Cir. 1982) ........................................................... 35

Cagle’s Inc., 21 BNA OSHC 1738 (No. 98‐0485, 2006)........................................................... 40

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)............................................................................ 46

Chamber of Commerce v. OSHA, 636 F.2d 464 (D.C. Cir. 1980)............................................. 43

Choc. Mfrs. Ass’n v. Block, 755 F.2d 1098 (4th Cir. 1985)....................................................... 43

Comm. Counsel. Serv., Inc. v. Reilly, 317 F.2d 239 (3d Cir. 1963) ............................................ 1

Comm. v. Acker, 361 U.S. 87 (1959)........................................................................................... 17

Council of the S. Mtns, Inc. v. Donovan, 653 F.2d 573 (D.C. Cir. 1981)................................. 33

Crowell v. Benson, 285 U.S. 22 (1932) ......................................................................................... 8

Dent v. W. Virginia, 129 U.S. 114 (1889) .................................................................................. 22

Dickinson v. Zurko, 527 U.S. 150 (1999) ................................................................................... 16

Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1976).................................................... 16, 26

Dominion Res., Inc. v. FERC, 286 F.3d 586, 593 (D.C. Cir. 2002) .......................................... 30

Dravo Corp. v. OSHRC, 613 F.2d 1120 (3d Cir. 1980) ............................................................ 16

Ed Cheff Logging, 9 BNA OSHC 1883 (No. 77‐2778, 1981) ................................................... 45

Elec. Workers Local 474 v. NLRB, 814 F.2d 697 (D.C. Cir. 1987) ........................................... 20

Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 507 (1943)...................................................... 3

Gen. Motors Corp., 9 BNA OSHC 1331 n.17 (No. 79–4478, 1981) ........................................ 31

Gracey v. Elec. Workers Local 1340, 868 F2d 671 (4th Cir. 1989)............................................ 24
         TABLE OF AUTHORITIES Page

iv

In re Sinclair, 870 F.2d 1340 (7th Cir. 1989)............................................................................. 23

Ind. Guard Ass’n Local No. 1 v. O’Leary, 57 F.3d 766 (9th Cir. 1995).................................... 33

Indus. Union Dep’t v Am. Petrol. Inst., 448 U.S. 607 (1980)...................................................... 3

Lane v. Dep’t of Agric., 120 F.3d 106 (8th Cir. 1997) ............................................................... 17

Lee Way Motor Freight, Inc. v. Secretary, 511 F.2d 864 (10th Cir. 1975)................................ 27

Levesque v. Block, 723 F.2d 175 (1st Cir. 1983) ........................................................................ 33

Lisbon Contractors, Inc., 11 BNA OSHC 1971 (No. 80‐97, 1984)........................................... 19

Mack Trucks, Inc. v. EPA, 682 F.3d 87 (D.C. Cir. 2012)........................................ 33, 35, 44, 46

Marcello v. Bonds, 349 U.S. 302 (1955) ..................................................................................... 16

Mid‐Tex Elec. Coop., Inc. v. FERC, 822 F.2d 1123 (D.C. Cir. 1987) ....................................... 33

Mobay Chem. Corp. v. Gorsuch, 682 F.2d 419 (3d Cir.), cert. denied, 459 U.S.

988 (1982) ............................................................................................................................... 33

Mobil Oil Corp. v. DOE, 610 F.2d 796 (Temp. Emer. Ct. App. 1979)................................... 34

Motor Veh. Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)...................... 38

N. Air Cargo v. Postal Service, 674 F.3d 852 (D.C. Cir. 2012)................................................. 29

N. Arapahoe Tribe v. Hodel, 808 F.2d 741 (10th Cir. 1987) ..................................................... 33

Nat’l Clients Coun., Inc. v. Legal Servs. Corp.,617 F.Supp. 480 (D.D.C. 1985)...................... 22

Nat’l Constructors Ass’n v. Marshall, 581 F.2d 960 (D.C. Cir. 1978)..................................... 42

Nat’l Family Plan. & Reprod. Health Ass’n v. Sullivan, 979 F.2d 227 (D.C. Cir.

1992)........................................................................................................................................ 41

Nat’l Nutritional Foods Ass’n v. Kennedy, 572 F.2d 377 (2d Cir. 1978) ........................... 33, 40

New Jersey v. EPA, 626 F.2d 1038 (D.C. Cir. 1980)................................................................. 33

Nichols v. Bd. of Trustees, 835 F.2d 881 (D.C. Cir. 1987) ........................................................ 16

Noblecraft Indus., Inc. v. Secr’y of Labor, 614 F.2d 199, 7 BNA OSHC 2059

(9th Cir. 1980) ........................................................................................................................ 16

Northwest Airlines, Inc., 8 BNA OSHC 1982 (No. 13649, 1980)............................................ 40

Pac. States Box & Basket Co. v. White, 296 U.S. 176 (1935) ..................................................... 22

Prof. Reactor Operator Soc’ty v. NRC, 939 F.2d 1047 (D.C. Cir. 1991) .................................. 17

Reich v. Gen. Motors Corp., 89 F.3d 313 (6th Cir. 1996).......................................................... 18

Reich v. Simpson, Gumpertz & Heger, Inc., 3 F.3d 1 (1st Cir. 1993) ................................. 18, 46

Reno‐Sparks Indian Colony v. EPA, 336 F.3d 899 (9th Cir. 2003)........................................... 33

SEC v. Chenery, 318 U.S. 80 (1943)............................................................................... 29, 30, 35

Shannon v. United States, 512 U.S. 573 (1994) ......................................................................... 20

Solis v. Summit Contractors, Inc., 558 F.3d 815 (8th Cir. 2009).............................................. 35

Steelworkers v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980), cert. denied, 453 U.S.

913 (1981) ................................................................................................................................. 3

Sugar Cane Growers Coop. v. Veneman, 289 F.3d 89 (D.C. Cir. 2002).................................... 43

Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 1141 (D.C. Cir. 1992) ........................................... 33
         TABLE OF AUTHORITIES Page

v

Tex. Rural Legal Aid, 940 F.2d 685 (D.C. Cir. 1991)................................................................ 22

Underhill Constr. Corp. v. Sec’y of Labor, 526 F.2d 53 (2d Cir. 1975)............................... 15, 40

United States v. Johnson, 632 F.3d 912 (5th Cir. 2011)............................................................ 35

United States v. Valverde, 628 F.3d 1159 (9th Cir. 2010)......................................................... 33

Usery v. Kennecott Copper Corp., 577 F.2d 1113, 6 OSHC 1197 (10th Cir.

1977)........................................................................................................................................ 15

Util. Solid Waste Activs. Grp. v. v. EPA, 236 F.3d 749 (D.C. Cir. 2001) ................................ 41

Wash. State Farm Bureau v. Marshall, 625 F.2d 296 (9th Cir. 1980)....................................... 33

West. Waterproofing, Inc., 7 BNA OSHC 1499, 1501 (No. 14523, 1979) ............................... 39

Whitman v. Am. Truck. Ass’ns, 531 U.S. 457 (2001)................................................................ 23

Statutes

Administrative Procedure Act (APA).............................. 17, 18, 22, 23, 33, 35, 36, 38, 45, 46

APA, 5 U.S.C. § 551(4).......................................................................................................... 18

APA, 5 U.S.C. § 553(b) ......................................................................................................... 46

APA, 5 U.S.C. § 553(b) ........................................................................................................... 2

APA, 5 U.S.C. § 553(b)(3)(B).................................................................................... 13, 33, 34

APA, 5 U.S.C. § 553(c)............................................................................................................ 2

APA, 5 U.S.C. § 556(c)............................................................................................................ 3

APA, 5 U.S.C. § 556(e).......................................................................................................... 14

*APA, 5 U.S.C. § 559 ................................................................................ 16, 20, 25, 26, 27, 46

APA, 5 U.S.C. § 706(2)(A).................................................................................................... 22

Construction Safety Act (“CSA”; the Contract Work Hours and Safety

Standards Act”), 40 U.S.C. former § 333(a)...................... 6, 7, 8, 10, 11, 21, 22, 23, 24, 26,

.................................................................................................................. 28, 29, 30, 31, 32, 43

CSA § 107(a) .................................................................................................................... 11, 21

CSA, 40 U.S.C. § 333....................................................................................................... 11, 21

Freedom of Information Act...................................................................................................... 7

Longshoremen’s and Harbor Workers’ Compensation Act (“LHWCA”),

33 U.S.C. § 941..................................................................... 8, 9, 10, 11, 16, 22, 23, 28, 30, 31

Occupational Safety and Health Act of 1970 .............................................. 8, 9, 10, 16, 21, 25

*OSH Act § 3(8)................................................................................................................. 18, 25

*OSH Act § 3(10)............................................................................................................... 18, 25

OSH Act § 4(b)(2)...................................................................................................... 30, 31, 32

OSH Act § 5(a)....................................................................................................................... 31

OSH Act § 5(a)(1).................................................................................................................. 45

*OSH Act § 6(a)..................................... 8, 10, 11, 15, 16, 17, 21, 26, 30, 31, 32, 34, 35, 41, 45
         TABLE OF AUTHORITIES Page

vi

OSH Act § 6(b) .......................................................................................................... 35, 45, 46

OSH Act § 6(b)(1).......................................................................................................... 2, 6, 46

OSH Act § 6(b)(2).............................................................................................................. 2, 46

OSH Act § 6(b)(3).............................................................................................................. 2, 46

OSH Act § 6(c)....................................................................................................................... 17

OSH Act § 6(d) ...................................................................................................................... 17

OSH Act § 6(e)................................................................................................................... 3, 17

OSH Act § 6(f) ................................................................................................................... 2, 17

OSH Act § 6(g) ...................................................................................................................... 17

OSH Act § 9(a)....................................................................................................................... 31

OSH Act § 17 ......................................................................................................................... 31

Service Contract Act ................................................................................................................... 6

Walsh‐Healey Public Contracts Act, 41 U.S.C. former §§ 35‐45

.................................................................................... 3, 4, 5, 6, 7, 9, 10, 11, 15, 16, 18, 19, 20,  

................................................. 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 34, 35, 38, 41, 43, 44

WHA, 41 U.S.C. § 35 .............................................................................................................. 9

WHA, 41 U.S.C. § 35(e)...................................................................................... 3, 5, 8, 23, 25

WHA, 41 U.S.C. § 36 .............................................................................................................. 9

WHA, 41 U.S.C. § 37 .............................................................................................................. 9

WHA, 41 U.S.C. § 38 .............................................................................................................. 9

WHA, 41 U.S.C. § 39 .............................................................................................................. 9

WHA, 41 U.S.C. § 40 .............................................................................................................. 9

WHA, 41 U.S.C. § 41 .............................................................................................................. 9

WHA, 41 U.S.C. § 42 .............................................................................................................. 9

WHA, 41 U.S.C. § 43 .............................................................................................................. 9

WHA, 41 U.S.C. § 44 .............................................................................................................. 9

WHA, 41 U.S.C. § 45 .............................................................................................................. 9

Standards and Regulations

29 C.F.R. § 1501.1..................................................................................................................... 8, 9

29 C.F.R. § 1501.2(c) .................................................................................................................... 9

29 C.F.R. § 1501.2(d).................................................................................................................... 9

29 C.F.R. Part 1910 ............ 3, 9, 11, 12, 13, 14, 29, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45

29 C.F.R. § 1910.1 .................................................................................................................... 8

29 C.F.R. § 1910.1(a).............................................................................................................. 20

29 C.F.R. § 1910.1(b) ....................................................................................................... 29, 35

29 C.F.R. § 1910.5(c)...................................................................................... 36, 37, 38, 39, 40
         TABLE OF AUTHORITIES Page

vii

29 C.F.R. § 1910.5(c)(1) ......................................................................................................... 39

29 C.F. R. § 1910.5(c)(2) .................................................................................................. 35, 39

29 C.F.R. § 1910.5(e)................................................................ 9, 10, 15, 17, 22, 28, 29, 30, 34

29 C.F.R. § 1910.11 .................................................................................................... 29, 30, 35

29 C.F.R. § 1910.11(a)...................................................................................................... 29, 34

29 C.F.R. § 1910.12 .......................................................................................... 8, 22, 29, 30, 35

29 C.F.R. § 1910.13 ...................................................................................................... 8, 22, 30

29 C.F.R. § 1910.14 ...................................................................................................... 8, 22, 30

29 C.F.R. §1910.15 ....................................................................................................... 8, 22, 30

29 C.F.R. §1910.16 ....................................................................................................... 8, 22, 30

29 C.F.R. Part 1910, Subpart I................................................................................................ 9

29 C.F.R. § 1910.151 ................................................................................................................ 9

29 C.F.R. § 1910.151(c)............................................ 2, 3, 11, 13, 15, 19, 28, 34, 35, 40, 42, 45

29 C.F.R. § 1910.153 (1972)..................................................................................................... 9

29 C.F.R. Part 1910, Subpart O.............................................................................................. 9

29 C.F.R. § 1910.212 .............................................................................................................. 26

29 C.F.R. § 1910.212(a)(4)........................................................................................... 3, 13, 42

29 C.F.R. § 1910.266(c)(3) ..................................................................................................... 11

29 C.F.R. § 1910.333 .............................................................................................................. 37

29 C.F.R. § 1910.333(b)(2)..................................................................................................... 37

29 C.F.R. § 1910.333(c)(10) ................................................................................................... 37

29 C.F.R. § 1910.333(c)(2) ..................................................................................................... 37

29 C.F.R. § 1910.334 .............................................................................................................. 37

29 C.F.R. § 1910.334(a)(1)..................................................................................................... 37

29 C.F.R. § 1910.334(a)(2)(iii)............................................................................................... 37

29 C.F.R. § 1910.334(a)(5)..................................................................................................... 37

29 C.F.R. § 1910.334(b)(1)..................................................................................................... 37

29 C.F.R. § 1910.334(b)(2)..................................................................................................... 37

29 C.F.R. § 1910.334(c)(1) ..................................................................................................... 37

29 C.F.R. § 1910.334(c)(2) ..................................................................................................... 37

29 C.F.R. § 1910.334(c)(3) ..................................................................................................... 37

29 C.F.R. § 1910.1030 ...................................................................................................... 37, 45

29 C.F.R. § 1910.1200, Hazard Communication Standard.............................................. 47

29 C.F.R. § 1910.1200(d)(5)(ii) ............................................................................................. 47

29 C.F.R. § 1910.1200(g)(2)(C)(i) ......................................................................................... 47

29 C.F.R. § 1910.1200, Appendix A (2011)......................................................................... 48

29 C.F.R. § 1911.5....................................................................................................................... 46

29 C.F.R. Part 1915 ...................................................................................................................... 8
         TABLE OF AUTHORITIES Page

viii

29 C.F.R. § 1915.1 .................................................................................................................... 8

29 C.F.R. Part 1916 ...................................................................................................................... 8

29 C.F.R. Part 1917 ...................................................................................................................... 8

29 C.F.R. Part 1918 ...................................................................................................................... 8

29 C.F.R. Part 1926 ............................ 8, 11, 12, 14, 19, 26, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45

29 C.F.R. § 1926.10 .............................................................................................................. 6, 8

29 C.F.R. § 1926.15(a)............................................................................................................ 24

*29 C.F.R. § 1926.15(b) ................................................................................................. 8, 27, 43

29 C.F.R. § 1926.416(a)(4)..................................................................................................... 37

29 C.F.R. § 1926.416(f) .......................................................................................................... 37

29 C.F.R. § 1926.416(g) ......................................................................................................... 37

29 C.F.R. § 1926.417(d) ......................................................................................................... 37

29 C.F.R. § 1926.50 ................................................................................................................ 15

29 C.F.R. § 1926.50(a).............................................................................................................. 7

29 C.F.R. § 1926.50(b) ............................................................................................................. 7

29 C.F.R. § 1926.50(g) ............................................... 1, 2, 7, 13, 15, 17, 27, 33, 41, 45, 47, 48

29 C.F.R. § 1926.51 ................................................................................................................ 13

29 C.F.R. § 1926.52 .................................................................................................................. 7

29 C.F.R. § 1926.56(a).............................................................................................................. 7

29 C.F.R. § 1926.95(a)............................................................................................................ 44

29 C.F.R. § 1926.500 .............................................................................................................. 19

29 C.F.R. Part 1928 .................................................................................................................... 18

29 C.F.R. § 1928.1 .................................................................................................................. 18

29 C.F.R. Part 1975 .................................................................................................................... 21

41 C.F.R. Part 50‐204, “Safety and Health Standards for Federal Supply

Contracts.................................................................................................... 4, 5, 8, 9, 23, 24, 27

41 C.F.R. § 50‐201.1................................................................................................................. 3

*41 C.F.R. § 50‐204.1(a) .................................................................................... 5, 18, 23, 25, 43

*41 C.F.R. § 50‐204.1(c)..................................................................................................... 23, 25

41 C.F.R. § 50‐204.1(d)...................................................................................................... 5, 24

41 C.F.R. § 50‐204.10 (1969) ................................................................................................... 7

41 C.F.R. § 50‐204.265............................................................................................................. 4

41 C.F.R. § 50‐204.270............................................................................................................. 4

41 C.F.R. § 50‐204.6............................................................................................................. 7, 9

41 C.F.R. § 50‐204.6(a) ............................................................................................................ 7

41 C.F.R. § 50‐204.6(b)............................................................................................................ 7

41 C.F.R. § 50‐204.6(c) ...................................................................................... 5, 7, 19, 24, 27

41 C.F.R. § 50‐204.63(c) .......................................................................................................... 4
         TABLE OF AUTHORITIES Page

ix

Federal Registers

25 Fed. Reg. 13809 (Dec. 29, 1960)....................................................................................... 4, 24

28 Fed. Reg. 10524 (1963) ........................................................................................................... 4

33 Fed. Reg. 14258 (1968) ........................................................................................................... 4

34 Fed. Reg. 2207 (Feb. 14, 1969) ............................................................................................... 5

34 Fed. Reg. 788 (Jan. 17, 1969).................................................................................................. 5

34 Fed. Reg. 7946 (May 20, 1969) .............................................................................................. 5

36 Fed. Reg. 1802 (Feb. 2, 1971) ................................................................................................. 6

36 Fed. Reg. 18080 (1971) .................................................................................................10, A‐1

36 Fed. Reg. 7340 (April 17, 1971) ............................................................................................. 6

36 Fed. Reg. at 10466......................................................................................................... 8, 9, 10

36 Fed. Reg. at 10601 col. 2......................................................................................................... 9

36 Fed. Reg. at 7346..................................................................................................................... 8

36 Fed. Reg. at 7347..................................................................................................................... 7

36 Fed. Reg. at 7348..................................................................................................................... 7

39 Fed. Reg. 861 (Jan. 3, 1974).................................................................................................. 11

43 Fed. Reg. 52986 (1978) ......................................................................................................... 42

44 Fed. Reg. 8577 (1979) ........................................................................................................... 13

46 Fed. Reg. 4034, 4039 (1981) ................................................................................................. 37

48 Fed. Reg. 53280, 53296, 53292 col. 3 (1983) ....................................................................... 47

55 Fed. Reg. 31984 ..................................................................................................................... 37

55 Fed. Reg. at 31986................................................................................................................. 37

57 Fed. Reg. 42102 (1992) ......................................................................................................... 41

Incorp. of Gen. Ind. Standards Applicable to Constr. Work,” 58 Fed. Reg.

35076‐77 (1993)........................................................................................................................ 2

58 Fed. Reg. at 35076 ...................................................................................................... 34, 36

58 Fed. Reg. at 35077 ........................................................................ 13, 14, 34, 41, 42, 43, 45

58 Fed. Reg. at 35179‐35181................................................................................................. 37

58 Fed. Reg. at 35305‐06....................................................................................................... 37

61 Fed. Reg. 41738 ..................................................................................................................... 37

77 Fed. Reg. 17574, 17711 (2012) ............................................................................................. 47

Rules

FED.R.CIV.P. 12(d)........................................................................................................................ 1

FED.R.CIV.P. 30(b)(6) ............................................................................................................. 1, 47
         TABLE OF AUTHORITIES Page

x

FED.R.CIV.P. 32(a) ........................................................................................................................ 1

FED.R.CIV.P. 32(a)(3) ................................................................................................................... 1

FED.R.CIV.P. 56............................................................................................................................. 1

FED.R.CIV.P. 56(c) ...................................................................................................................... 46

FED.R.CIV.P. 56(e) ...................................................................................................................... 46

Treatises

J. LUBBERS, A GUIDE TO FED. AGENCY RULEMAKING 107 (4th ed. 2006)............................... 41

M. ROTHSTEIN, OCCUP. SAFETY AND HEALTH LAW § 4.9, p.94 (2012)................................... 16

Miscellaneous

1974 BNA OSHR CURRENT REPORT 1201................................................................................ 11

ADV. COMM. NOTES ON 1970 AMENDMENTS TO RULE 32(a) ..................................................... 1

BLACK’S LAW DICTIONARY 35 (5th ed. 1979)........................................................................... 20

Labor Department Compilation of Sources of Part 1926 (April 17, 1971) .......................... 7

LABOR DEPARTMENT, EMPLOYMENT LAW GUIDE: FEDERAL CONTRACTS‐

WORKING CONDITIONS: WAGES IN SUPPLY & EQUIPMENT CONTRACTS;

WALSH‐HEALEY PUBLIC CONTRACTS ACT (PCA); WHO IS COVERED,

available at www.dol.gov/compliance/guide/walshh.htm. ......................................... 5, 24

Letter from G. Reidy (OSHA) to G. Kennedy (NUCA) (1990), available at

www.osha.gov/pls/oshaweb/owadisp.show_document?p_table

=INTERPRETATIONS&p_id=20081 .................................................................................. 37

Letter from Sec’y of Labor L. Martin to R. Georgine, “Constr. Activities

and Operations and the Bloodborne Pathogens Standard” (1992) (SJ

Attach. H), available at www.osha.gov/pls/oshaweb/owadisp.

show_document?p_table =INTERPRETATIONS&p_id=20968..................................... 37

NEW OXFORD AM. DICTIONARY 18 (2d ed. 2005).................................................................... 20

Note, The “Good Cause” Exceptions: Danger to Notice and Comment

Requirements Under the Administrative Procedure Act, 68 GEO.L.J. 765, 773

(1980) ...................................................................................................................................... 33

OSHA’S GUIDANCE FOR HAZARD DETERMINATION FOR COMPLIANCE WITH

THE OSHA HAZARD COMMUNICATION STANDARD (29 CFR 1910.1200),

available at www.osha.gov/dsg/hazcom/ghd053107.html............................................... 47

Thomas J. Ryan, Jud. Rev. of OSHA Standards: The Effect of the Right to Pre‐

enforcement Rev. of OSHA Standards on Subsequent Challenges,

54 FORDHAM L.REV. 117 (1985).............................................................................................. 2
         TABLE OF AUTHORITIES Page

xi

Constitutional Provisions

Commerce Clause ....................................................................................................................... 6

Const. Art. III, § 2 ........................................................................................................................ 8

Fifth Amendment...................................................................................................................... 22

Legislative Histories

80 CONG. REC. 10010 (1936)........................................................................................................ 4

80 CONG. REC. 10018 (1936)........................................................................................................ 4

Gov’t Purchases and Contracts: Hearing before the S. Comm. on Ed. & Labor,

74th Cong. p. 1 (1935)............................................................................................................. 4

S. 3055, 74th Cong. § 1 (1935)..................................................................................................... 4

S. 3055, 74th Cong. § 1 (1936)..................................................................................................... 4

H. REP. NO. 2946 at 1 (1936) ....................................................................................................... 4

LEGIS. HISTORY OF THE APA, S.DOC. NO. 248, 79TH CONG. p. 200 (1946)...................... 33, 34

H.REP. NO. 752, 79TH CONG. (1945) ........................................................................ 33, 34, 41

S.DOC. NO. 248, 79TH CONG., p. 200 (1946) ........................................................................ 44

S. COMM. ON LABOR AND PUB. WELFARE, 92D CONG., LEGIS. HIST. OF THE

OCCUP. SAFETY AND HEALTH ACT OF 1970 (1971)................................................................ 2

OSH Act Leg. Hist. at 145–46.............................................................................................. 19

OSH Act Leg. Hist. at 302...................................................................................................... 2

OSH Act Leg. Hist. at 304...................................................................................................... 2

OSH Act Leg. Hist. 1217 ...................................................................................................... 32

H.CONF.REP. 91‐1765, p. 33 (1970), OSH Act Leg. Hist. at 1186..................................... 32

H.R. 16785, 91st Cong., p. 7 (April 7, 1970); OSH Act Leg. Hist. at 721,

727 ...................................................................................................................................... 21

H.R. 19200, 91st Cong., p. 8 (Sept. 15, 1970); OSH Act Leg. Hist. at 763,

770 ...................................................................................................................................... 21

S. 4404, 91st Cong. (1970) (OSH Act Leg. Hist. 111) .......................................................... 2

S. REP. NO. 1282, at 6 (1970)................................................................................................. 19

S. COMM. ON LABOR AND PUB. WELFARE, 91ST CONG., LEGIS. HISTORY OF THE

FED. CONSTR. SAFETY ACT, at 34‐35 (Comm. Print 1969).................................................... 6

S. REP. NO. 320, 91st Cong., at 1, CSA Leg. Hist................................................................. 6
I. Statement of the Case

Item 1 of Citation 1 alleged that Kiewit Power Constructors Co. (“KPCC”) did not

comply with 29 C.F.R. § 1926.50(g), which states: “Where the eyes or body of any person

may be exposed to injurious corrosive materials, suitable facilities for quick drenching

or flushing of the eyes and body shall be provided within the work area for immediate

emergency use.” During discovery, the deposition of the Secretary regarding validity

issues was taken under FED.R.CIV.P. 30(b)(6) through her designee, Paul Bolon, Director

of the Office of Construction Standards and Guidance (“Bolon Tr.”).1 In accordance

with Judge Simko’s order, OSHA filed its rulemaking record, which was later

supplemented by consent.2 KPCC moved to dismiss or for summary judgment, and for

a declaratory order. The Judge granted the motion to dismiss, but thought it

unnecessary to rule on the motion for summary judgment or for declaratory order. Both

parties’ petitions for discretionary review were granted.  

II. Record and Incorporated Arguments

Inasmuch as KPCC’s motion was supported by materials outside the pleadings (e.g.,

the rulemaking record and OSHA’s deposition testimony), it “must be treated as one for

summary judgment under Rule 56.” FED.R.CIV.P. 12(d). We thus rely on those materials.

As permitted by the briefing order, KPCC incorporates all its arguments in the

submissions mentioned by the order. As to issue (3), KPCC additionally cites—

                                                                    

1 Transcripts of depositions of parties taken under FED.R.CIV.P. 30(b)(6) are admissible.

FED.R.CIV.P. 32(a)(3) (“Deposition of Party, Agent, or Designee. An adverse party may use

for any purpose the deposition of a party or anyone who, when deposed, was the

party’s ... designee under Rule 30(b)(6)....”); ADV. COMM. NOTES ON 1970 AMENDMENTS

to Rule 32(a); Comm. Counsel. Serv., Inc. v. Reilly, 317 F.2d 239, 243 (3d Cir. 1963).

2 Attach. (CD‐ROM) to Sec’y’s Letter (June 26, 2012); Attach. (CD‐ROM) to KPCC’s

Reply to Resp. of Sec’y to Mot. Summ. J. etc. (Oct. 16, 2012). References to the

rulemaking record are to “RR:” The electronic file names are in Addendum B.
 Two statements to the Senate by Senator Javits, made while urging the compromise

that permitted the Act’s passage, that employers “would have plenty of time to

contest [the standards]” and “plenty of opportunity to go into court and contest the

rule.” S. COMM. ON LABOR AND PUB. WELFARE, 92D CONG., LEGIS. HIST. OF THE OCCUP.

SAFETY AND HEALTH ACT OF 1970, at 464 (1971) (Leg. Hist.);

 “Comparative Analysis of Significant Provisions of ... S. 2193... and S. 4404...,” Leg.

Hist. at 302, 304 (under S. 2193, 91st Cong. (1970) (source of § 6(f)), “Judicial review

of standards would also be possible in enforcement proceedings.”; but under

rejected S. 4404, 91st Cong., at 39 (1970) (Leg. Hist. 111), pre‐enforcement review

would be “exclusive”);

 Simplex Time Recorder Co. v. Sec’y, 766 F.2d 575, 582‐83 n.2 (D.C. Cir. 1985);  

 Thomas J. Ryan, Jud. Rev. of OSHA Standards: The Effect of the Right to Pre‐enforcement

Rev. of OSHA Standards on Subsequent Challenges, 54 FORDHAM L.REV. 117 (1985).

KPCC also observes that the lack of feasibility and significant risk findings are

substantive defects, and, with respect, that the Secretary’s PDR did not raise the third

issue stated in the Commission’s briefing order.

III. Statutory and Regulatory Background.

A. The Cited Standard, 29 C.F.R. § 1926.50(g).

Section 1926.50(g) appeared in the Federal Register one day in 1993 as a final

standard. “Incorp. of Gen. Ind. Standards Applicable to Constr. Work,” 58 Fed. Reg.

35076‐77, 35084 (1993). It had been copied from § 1910.151(c). Id. at 35305 (“App. A to Pt.

1926, Designations for Gen. Ind. Standards Incorp. Into Body of Constr. Standards”).

The publication of § 1926.50(g) was not preceded by public notice (usually required

by OSH Act § 6(b)(1)‐(3) and APA, 5 U.S.C. § 553(b)‐(c)), a proposed rule (id.), or an

opportunity for public comment (id.). OSHA did not find that § 1926.50(g) was

technologically and economically feasible in construction, that it addressed significant

2
risks in construction,3 and that it was otherwise “reasonably necessary or appropriate”

in construction,4 nor did it give reasons (§ 6(e); APA § 556(c)) why § 1910.151(c) was

“appropriate” for application to construction but other Part 1910 standards (e.g.,

§ 1910.212(a)(4)) were not. Instead, OSHA stated that it had “good cause” for omitting

these notices, opportunities and findings. See p. 13 below.

B. The Walsh‐Healey Public Contracts Act.

The Walsh‐Healey Public Contracts Act, 41 U.S.C. former §§ 35‐45 (“WHA”),

requires that “no part of any...contract” with the Federal Government “for the

manufacture or furnishing of materials, supplies, articles, and equipment...” “be

performed...in any plants, factories, buildings, or surroundings or under working

conditions which are unsanitary or hazardous or dangerous to the health and safety of

employees engaged in the performance of said contract.” WHA § 1(e), 41 U.S.C. former

§ 35(e) (now § 6502(4)) (RR:7). The WHA “is not an Act of general applicability to

industry. It applies only to contractors who voluntarily enter into competition to obtain

government business on terms of which they are fairly forewarned by inclusion in the

contract.” Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 507 (1943); 41 C.F.R. § 50‐201.1

(“not an act of general applicability to industry”). When the WHA was being fashioned,

the House removed the word “construction” from the Senate bill that eventually was

                                                                    

3 E.g., AFL‐CIO v. OSHA, 965 F.2d 962, 980 (technological), 982 (economic) (11th Cir.

1992); Steelworkers v. Marshall, 647 F.2d 1189, 1272‐73 (economic), 1301 (technological;

“undisputed principle that feasibility is to be tested industry‐by‐industry demands that

OSHA examine the technological feasibility of each industry individually”) (D.C. Cir.

1980), cert. denied, 453 U.S. 913 (1981).

4 OSH Act § 3(8) requires that standards be “reasonably necessary or appropriate.” A

standard must be found technologically and economically feasible, Am. Textile Mfrs.

Inst. v. Donovan, 452 U.S. 490, 504 (1981), and to regulate a significant risk of harm,

Indus. Union Dep’t v Am. Petrol. Inst., 448 U.S. 607, 608 (1980); AFL‐CIO, 965 F.2d. at 980

(“establish that existing exposure levels in the workplace present a significant risk ... or

that the new standards eliminate or substantially lessen the risk”) (emphasis added).

3
passed,5 and then defeated an attempt to re‐insert it. 80 CONG. REC. 10018, 10010 (1936).

The WHA rested not on the Commerce Clause but on Congress’s power to prescribe the

conditions under which the Federal Government would enter into contracts. American

Can Co., 10 BNA OSHC 1305, 1312 (No. 76‐5162, 1982).

In 1960, 41 C.F.R. § 50‐204.270, a version of which is now the cited standard, was

adopted under the WHA. 25 Fed. Reg. 13809, 13823 (Dec. 29, 1960). Nothing in the

announcement gave notice to those with federal construction contracts that the

standards might apply to them. On the contrary, it stated that the standards would

apply to “industrial establishments” (id. at 13809), that they would be placed in a new

Part 50‐204, entitled, “Safety and Health Standards for Federal Supply Contracts” (id. at

13810), and that the standards were based on an “evaluation” and “[c]ausative analysis

of injury frequency rates” in “industrial establishments.” Id. at 13809.

In 1963, the Department proposed to amend the standard. 28 Fed. Reg. 10524, 10539

(1963) (proposing 41 C.F.R. § 50‐204.265). The announcement was entitled “Safety and

Health Standards For Federal Supply Contracts” and stated that it would apply to

“federal supply contracts.” Among the employer organizations said to have been

consulted were the Electronic Industries Association and the Manufacturing Chemists

Association. No construction industry association was listed and the announcement did

not indicate that the standards might apply to construction.

In 1968, the Department proposed to amend Part 50‐204, including the standard.

33 Fed. Reg. 14258, 14270 (1968) (proposing § 50‐204.63(c)). The announcement was

headed, “Federal Supply Contracts” and was stated to apply to contracts “for the

                                                                    

5 Compare S. 3055, 74th Cong. § 1 (1936), printed in H. REP. NO. 2946, at 1 (1936) (no

reference to “construction”), with S. 3055, 74th Cong. § 1 (1935) (would apply to

“construction”), printed in Gov’t Purchases and Contracts: Hearing before the S. Comm. on

Ed. & Labor, 74th Cong., at 1 (1935).

4
manufacture or furnishing of materials, supplies ....” Among the employer

organizations consulted were the Electronic Industries Association and the

Manufacturing Chemists Association. No construction industry association was listed.

The announcement did not indicate that the standards might apply to construction.

In 1969, the standard was amended and re‐designated paragraph (c) of § 50‐204.6.

34 Fed. Reg. 788, 789‐90 (Jan. 17, 1969). Nothing in the announcement indicated that the

standard might apply to construction. After its effective date was postponed (34 Fed.

Reg. 2207 (Feb. 14, 1969), the rule was made effective, apparently without further

amendment. 34 Fed. Reg. 7946, 7948 (May 20, 1969).

Section 50‐204.1(a) states the scope of the WHA standards. After stating that WHA

§ 1(e) requires that contracts “for the manufacture or furnishing of materials, supplies,

articles, and equipment...must contain” the safety stipulation on p. 3, § 50‐204.1(a)

stated: “This Part 50‐204 expresses the Secretary of Labor’s interpretation and

application of [WHA § 1(e)] with regard to certain particular working conditions.”

(Emphasis added.) Similarly, § 50‐204.1(d) stated that the standards in Part 50‐204 “are

for application to ordinary employment situations” and do not “purport to describe all

of the working conditions which are [unsafe to]...employees. Where such other

working conditions may be found to be [unsafe to]...employees, professionally

accepted safety and health practices will be used.”

The Secretary’s official EMPLOYMENT LAW GUIDE states that the WHA applies to

“employees who produce, assemble, handle, or ship goods under” contracts for “the

manufacturing or furnishing of materials, [etc.].” LABOR DEP’T, EMPLOY. LAW GUIDE:

FED. CONTRACTS‐WORKING CONDITIONS: WAGES IN SUPPLY & EQUIPMENT CONTRACTS;

WALSH‐HEALEY PUBLIC CONTRACTS ACT (PCA); WHO IS COVERED, available at

www.dol.gov/compliance/guide/walshh.htm. (For brevity, we refer to the WHA

standards’ scope as “manufacturing,” though it also encompassed “supply” of

materials.)

5
C. The Construction Safety Act.

The Construction Safety Act (“CSA”; formally, the Contract Work Hours and Safety

Standards Act”), 40 U.S.C. former § 333(a) (now codified at § 3704), authorized adoption

of standards governing federal contracts “for construction.” Like the WHA, the CSA

rested not on the Commerce Clause but on Congress’s contracting power.

When Congress debated the CSA, Rep. Carl Perkins, chairman of the House

Committee on Education and Labor when both the CSA and OSH Act were adopted,

declared to the full House:

Some people have been laboring under the impression that construction safety

legislation is not necessary since they allege construction workers are already

protected under the Walsh‐Heal[e]y Act or the Service Contracts Act. I want to

set the record straight right now...: Our committee has found that construction

workers presently are not protected by any Federal safety or health laws. The

result of this lack of protection is that thousands of men are being needlessly

killed or disabled each year.

The Walsh‐Heal[e]y Act...provided that employees of supply contractors doing

contract work for the Federal Government would be provided safe and healthful

working conditions. ... But in the case of construction workers the law is silent

on the question of the safety of their working conditions while doing similar

work under Federal or federally assisted contracts. ...

S. COMM. ON LABOR AND PUB. WELFARE, 91ST CONG., LEGIS. HISTORY OF THE FED. CONSTR.

SAFETY ACT, at 34‐35 (Comm. Print 1969) (“CSA Leg. Hist.”). See also S. REP. NO. 320,

91st Cong., at 1, CSA Leg. Hist. at 95 (construction workers not covered by WHA).  

In 1971, the Secretary proposed to adopt and, eleven days before the OSH Act’s

effective date, did adopt, standards under the CSA. 36 Fed. Reg. 1802 (Feb. 2, 1971)

(proposed); 36 Fed. Reg. 7340 (April 17, 1971) (final). The scope of the CSA standards

was “construction” work (specifically, “construction, alteration, and/or repair...”)

performed under a federal contract. § 1926.10.

Some CSA standards were modified versions of WHA standards. For example, the

CSA noise standard was a modified version of the WHA noise standard. Compare

6
36 Fed. Reg. at 7348 (§ 1926.52)6 with 41 C.F.R. § 50‐204.10 (1969); see also the Labor

Department Compilation of Sources of Part 1926 (April 17, 1971) (“Compilation”)

(Attachment J to SJ motion) (CSA noise standard “modified” from WHA standard).7

No CSA standard akin to § 50‐204.6(c) was proposed or adopted. See also Bolon

Tr. 72 (no equivalent to § 1926.50(g) in proposed CSA standards). The agency adopted

in modified form as CSA standards all other paragraphs of § 50‐204.6 (i.e., (a) and (b)),

but not paragraph (c). Compare § 36 Fed. Reg. at 7347 (adopting § 1926.50(a) and (b))

with § 50‐204.6(a) and (b)); Compilation (paragraph (a) “changed after proposal

hearings”; paragraph (b) “modified”). The agency did the following:

(Not adopted under the CSA)

                                                                    

6 The construction standards were then in Part 1518, which was designated Part 1926 at

36 Fed. Reg. 25232 (Dec. 30, 1971). For clarity, we use the later designation throughout.

7 OSHA used this compilation to determine the derivation of the Part 1926 standards,

and provided it in response to a FOIA request for such. Letter from M. Shepherd (SOL)

(Sept. 7, 2012) (“OSHA provided the document ... in response to a [FOIA] request ... for

‘a copy of the presumed document from which Mr. Swanson learned that ‘OSHA

adopted § 1926.56(a) with Table D‐3 directly from section/paragraph 8.2 of the 1968

Bureau of Reclamation (Interior Department) standards/regulations in 1971.’ See

attached FOIA request dated March 7, 2003.”); Letter from M. Shepherd (SOL) (Sept. 10,

2012) (“[t]he handwriting on the [facsimile] cover sheet appears to be that of Larry

Davey, an OSHA employee with the Directorate of Construction.”).

7
Among the CSA standards then adopted was § 1926.15(b), which states in part: “...

41 C.F.R. Part 50‐204...express[es] the Secretary[‘s]...application of section 1(e) of the

Walsh‐Healey...Act to certain particular working conditions. None of the described

working conditions [in 41 C.F.R. Part 50‐204] are intended to deal with construction

activities....” 36 Fed. Reg. at 7346 (emphasis added).

D. The Occupational Safety and Health Act of 1970.

On May 29, 1971, OSHA summarily (i.e., without the notices, opportunities and

findings noted on p. 2) adopted numerous national consensus standards and

established Federal standards as standards applicable to employers in businesses

affecting commerce; OSHA invoked only OSH Act § 6(a) as authority. 36 Fed. Reg. at

10466, 10467 (“Authority”), id. (§ 1910.1).

Among the standards OSHA so adopted were the CSA standards in Part 1926.

36 Fed. Reg. 10466, 10469 (May 29, 1971). OSHA did not re‐publish them but

incorporated them by reference through a new provision, § 1910.12, which also stated

what scope Part 1926 would have under the OSH Act—”construction work” (work for

“construction, alteration, and/or repair...”). This was the same work to which the CSA

standards applied under the CSA (§ 1926.10), but without the language in § 1926.10 that

restricted them to federally‐contracted construction.

Similarly, OSHA adopted as OSH Act standards maritime standards originally

adopted under the Longshoremen’s and Harbor Workers’ Compensation Act

(“LHWCA”), 33 U.S.C. § 941. Inasmuch as the LHWCA rested on Congress’s power

under Const. Art. III, § 2 (Crowell v. Benson, 285 U.S. 22 (1932)), the LHWCA standards

in Parts 1915 through 1918 applied to “ship repair [etc.] on the navigable waters of the

United States.” E.g., 29 C.F.R. § 1915.1 (originally, § 1501.1). OSHA did not re‐publish

the maritime standards but instead incorporated them by reference through §§ 1910.13

(incorporating by reference Part 1915, ship repair), 1910.14 (Part 1916, shipbuilding),

1910.15 (Part 1917, shipbreaking) and 1910.16 (Part 1918, longshoring). Those new

8
provisions also stated what scope the LHWCA‐derived standards would have under

the OSH Act (36 Fed. Reg. at 10469)—”ship repair,” “shipbuilding,” “shipbreaking,”

and “longshoring operations.” This was the same work to which they applied under the

LHWCA, but without the restriction to navigability in their parallel, native scope

provisions (e.g., §§ 1501.1 (“navigable waters”) & 1501.2(c)‐(d) (“ship repair”).

OSHA also adopted the WHA standards as OSH Act standards, but not through

incorporation by reference. Instead, they were re‐designated and re‐published in a new

Part 1910, and placed in the same subparts as national consensus standards on the same

subject matter. E.g., Part 1910, Subpart I (containing WHA and national consensus

standards on personal protective equipment); Subpart O (same, machine guarding).

Among the WHA standards so adopted was 41 C.F.R. § 50‐204.6, redesignated

§ 1910.151. § 1910.153 (1972) (“Sources of standards”), 36 Fed. Reg. at 10601 col. 2. As it

did with the other established Federal standards, OSHA created a new scope provision

(§ 1910.5(e)) to state the scope of WHA‐derived standards under the new OSH Act.

36 Fed. Reg. at 10468. Like the other new scope provisions, § 1910.5(e) stated that the

WHA‐derived standards would apply to the same work they had previously regulated

(i.e., manufacturing) but without regard to whether a federal contract was involved:

Whenever the source of a standard prescribed in this Part 1910 is indicated to be

an established Federal standard published in 41 C.F.R. Part 50‐204, the standard

so prescribed is applicable only to plants, factories, buildings, or other places of

employment where materials, supplies, articles, or equipment are manufactured

or furnished. That is, the standard is intended to apply to manufacturing or

supply operations which would be subject to the Walsh‐Healey Public Contracts

Act if there were a Federal contract (41 U.S.C. 35‐45) for the procurement of the

materials, supplies, articles, or equipment involved.

OSHA agreed that § 1910.5(e) meant that the WHA‐derived standards in Part 1910

applied only to manufacturing, excluded construction, and did not apply “across the

board to all industries.” Bolon Tr. 64‐66. (For this reason, KPCC does not argue that

OSHA’s incorporation on this date of the WHA standards into Part 1910 was invalid.)

9
On Sept. 9, 1971, OSHA summarily revoked § 1910.5(e), citing OSH Act § 6(a).

36 Fed. Reg. 18080. OSHA acknowledged that § 1910.5(e) “limits the application of”

WHA‐derived standards in Part 1910 to manufacturing but stated that the “purpose” of

the revocation was to “remove the limitation.” OSHA did not state how § 6(a)

authorized the revocation; why it believed in May 1971 that the limitation was proper

but in September 1971 believed the opposite; or why it removed that limitation from

only the application of the former WHA standards and not the CSA or LHWCA

standards. See also Bolon Tr. 95 (no explanation for difference). The revocation’s effect

was to apply the WHA standards to all OSH Act‐covered work (Bolon Tr. 86‐87, 94),

“[r]egardless of whether an employer manufactures or furnishes materials...” (id. 94),

even agriculture, ship breaking, and diving, as well as construction (id. 86‐88). Thus,

according to OSHA, this was the effect of the adoption and revocation of § 1910.5(e):

Native

Statute

Coverage Under Native Statute Coverage Under OSH Act

Constitution

al Basis

Type of Work Constitutional

Basis

Type of Work

(36 FR 10466

(5/29/71))

Type of Work

(36 FR 18080

(9/9/71))

LHWCA Navigable

waters of

U.S.

Ship repair,

‐building,

‐breaking,

longshoring

Commerce Ship repair,

‐building,

‐breaking,

longshoring

Ship repair,

‐building,

‐breaking,

longshoring

CSA Federal/

federally‐

financed

contract

Construction   Commerce Construction Construction

WHA Federal

contract

Manufacture/

furnish materials,

supplies, articles,

equipment

Commerce Manufacture/

furnish materials,

supplies, articles,

equipment

All work, incl.

agriculture,

diving,

construction, ship

repair, ‐building,

‐breaking,

longshoring, etc.

The revocation of § 1910.5(e) was not preceded or accompanied by public notice or

findings that the WHA‐derived standards were feasible as applied to construction work

10
or were “reasonably necessary or appropriate” in such work.” OSHA’s position is that

§ 6(a) authorized it to summarily extend the WHA standards to all employments,

including construction. Bolon Tr. 104‐05. Similarly, its position is that it could have

summarily so extended the CSA standards to all employments. Id. 105‐06. Although

OSHA took the position that § 6(a) also authorized it to so extend the LHWCA maritime

standards (i.e., to manufacturing, construction, agriculture, etc.), it did not consider

doing so because “they wouldn’t have been a good fit.” Id. 46‐47.

1. The ACCSH Subcommittee, and Its 1974 Revolt

OSHA’s attempt to make the former WHA standards applicable to construction

apparently caused confusion among construction employers. On Dec. 4, 1973, the

chairman of the Advisory Committee on Construction Safety and Health (ACCSH) (see

CSA § 107(a), 40 U.S.C. § 333) stated (RR:29) that, “There is a need to appoint a

committee dealing with developing one set of standards for the construction

industry.... I am talking about∙1910 versus 1926.” OSHA announced the formation of a

“Subcommittee on Editing Part 1910 for Construction Operations” and that, “The

Subcommittee will consider review of the General Industries Standards, Part 1910, to

determine which individual items may be applicable to construction operations.”

39 Fed. Reg. 861 (Jan. 3, 1974).

The subcommittee met on several occasions (e.g., RR:28), using an OSHA staff paper

as a “working document” or “road map.” Tr. 3‐4 (Jan. 10, 1974) (RR:31); 1974 BNA

OSHR CURRENT REPORT 1201. It decided to recommend that several Part 1910 standards

not be verticalized, such as § 1910.266(c)(3). Tr. 15 (Jan. 10, 1974) (RR:31); Tr. 44

(“impractical” to take “entirely industrial requirements”). As to § 1910.151(c) (the

eyewash standard), a sharp debate ensued (Tr. 81‐89 (RR:31)), during which the

chairman stated, “This is going to be a difficult one, gentlemen.” Tr. 83. The

subcommittee voted to delete the word “suitable” and to “flag” the standard for

“special discussion” by the full committee. Tr. 88‐89.

11
After several weeks, on Jan. 24, 1974, the subcommittee insisted to the full committee

that any Part 1910 standards be “reworded,” “adapted,” not merely adopted verbatim:

MR. LIVINGSTONE [chairman of subcommittee]:...I...would like to throw the

suggestion to the [full] committee that in view of our study so far of the 1910

items that would be applicable to construction and the needed rewording so that they

would apply to construction and to the way construction is oriented for compliance,

that that 1926 standard be the only standard applicable to construction because

we cannot comply with the items or construction cannot, in my opinion, comply

with items that we have so far discussed and looked over in 1910.

...The motion is to accept the 1926 as the only standard applicable to construction

in view of the fact that the way 1910 is written the contractors cannot comply.

*               *               *

MR. FARRELL: Yes, but when you bring in 1910 into 1926 then I would say that

would be the thing to accept, am I correct?

MR. LIVINGSTON: We would continue the project. I don’t believe the chairman

would stop the project at this point of putting into 1926 those items in 1910 which

are applicable and rewording them. This would continue and you would get this

when the committee gets finished.

*               *               *

MR. LIVINGSTON: The reason for this, gentlemen, is that the way 1910 is written

it is almost impossible for a contractor to comply with those items that, we have

discussed and that we have looked at that are necessary to put into 1926.

They have got to be reworded, there has got to be some deletions here and there

in the thing that no way can we in our discussions been able to say that this can be

taken right out of here, put over here as is. ...

MR. BROWN: In support of the chairman of the subcommittee... I would say that

I was impressed with many of the 1910 standards that are not covered in any way in

1926 are designed for permanent facilities, are designed for an industrial setting

and to try to move them into the transient construction job site is impossible....

*               *               *

MR. ANANIA: Well, are you proposing then just to throw that standard out?

MR. SPOERER: No, no.

MR. BROWN: Reword it.

MR. COONEY:... Reword the 1910 standard and put it into 1926 to conform with

what could possibly be workable.

MR. ARO: Adapted.

MR. COONEY: Is that right, Fred?

MR. LIVINGSTONE: That is correct.

12
ACCSH Mtg. Tr. 105‐09 (Jan. 24, 1974) (RR:33) (emphasis added). Nothing then

happened for four years, until 1978, when ACCSH deliberations resumed. Thereafter,

some Part 1910 standards (e.g., § 1910.212(a)(4)) were, for feasibility reasons, not

recommended for verticalization. E.g., Tr. 165 (June 14, 1978) (RR:41).

2. The 1979 “Notice of Enforcement Policy”

In 1979, OSHA published a “Notice of Enforcement Policy” entitled, “Identification

of General Industry Standards Applicable to Construction Work,” 44 Fed. Reg. 8577

(1979). The notice interspersed among the construction standards those Part 1910

standards that OSHA “identified as also applicable to construction work.” Id. at 8577

col. 1. In the notice, the text of § 1910.151(c) was placed after the construction industry

“sanitation” standard, § 1926.51. Id. at 8589 col. 1. OSHA stated the inclusion criterion

that it used—”those part 1910 standards (General Industry) which are most likely to be

applicable to construction work....” Id. at 8577 col. 2 (emphasis added). It also stated

that more standards may be added to its list “[i]f enforcement experience indicates that

other part 1910 standards are applicable to construction....” Id. (emphasis added).

3. The 1993 Verticalizations

As noted above, § 1926.50(g) was adopted without the normally required

rulemaking proceedings, findings etc. (p. 2). To justify their absence, OSHA cited the

exception in 5 U.S.C. § 553(b)(3)(B), which states that “this subsection does not apply—

...(B) when the agency for good cause finds...that notice and public procedure thereon

are impracticable...[or] unnecessary....” OSHA claimed that the “impracticable” and

“unnecessary” elements applied because, “This action does not affect the substantive

requirements or coverage of the standards themselves. This incorporation does not

modify or revoke existing rights or obligations, nor does it establish new ones. This

action simply provides additional information on the existing regulatory burden.”

58 Fed. Reg. at 35077. As support, OSHA asserted that the standards “have been

identified as applicable to construction work.” 58 Fed. Reg. at 35076.

13
The preamble, the rulemaking record, and the record here establish that the entity

that “identified” the verticalized standards as “as applicable to construction work,” and

had “applied [them] to construction employment” (id.) was OSHA itself. The preamble

stated that, “[i]n a number of cases, the Agency has determined that it is appropriate to

cite a construction employer for violation of a part 1910 standard.” Id. (emphasis

added). OSHA also admitted here that its statement that verticalized Part 1910

standards had been applied to construction employment meant that they had been so

applied “by OSHA.” Bolon Tr. 55‐56. See also the following OSHA documents, made

part of the rulemaking record (and publicly available in OSHA’s Docket Office and

Regulations.gov), or the record here, or both: ACCSH Tr. 32 (Feb. 16, 1993) (RR:49; SJ

Attach. C), available at www.regulations.gov/#!documentDetail;D=OSHA‐ACCSH1993‐

1‐2006‐0161‐0009 (assertion by committee member and head of “1910/1926

Recodification Work Group”8 that standards “had been applied to construction” was

based in part on “the compliance activity of [OSHA] inspectors.”); Oral Arg. Tr. 51 (“we

didn’t change...obligations of...the construction industry because we had been doing

that for a number of years.”); OSHA PDR at 6 (OSHA verticalized standards “that

OSHA then considered applicable to construction.”) (emphasis added).

                                                                    

8 “Report to ACCOSH on the proposed 1910/1926 Recodification Project” (Jan. 29, 1993)

(RR:48), also available at www.regulations.gov/#!documentDetail;D=OSHA‐ACCSH1993‐

1‐2006‐0161‐0003. This document is in the rulemaking record and thus the record in this

case. See e‐mail message from M. Shepherd (SOL) (July 27, 2012) (“Please consider ...

the two documents that you attached to your email of 6/18/12, as a part of the

compilation of documents that were produced on 6/26/12.”); e‐mail message from

A. Sapper to M. Shepherd (June 18, 2012) (attaching RR:48, RR49), which are on the CD‐

ROM filed with the summary judgment papers on Oct. 16, 2012. In any event, the

Commission may and should take official notice under 5 U.S.C. § 556(e) of this and

other cited documents, such as ACCSH Mtg. Tr. at 32 (Feb. 16, 1993) (RR:49), which in

addition to being in the record, is publicly available in the official OSHA rulemaking

docket at Regulations.gov (www.regulations.gov/#!documentDetail;D=OSHA‐

ACCSH1993‐1‐2006‐0161‐0009).

14
OSHA also claimed here that during the 1993 verticalization, it made findings of

feasibility and significant risk. Sec’y’s Supp. Responses to KPCC’s First Set of Req. for

Admissions at 3 (filed June 26, 2012) (OSHA in 1993 found that § 1926.50(g) in

construction is “feasible,” “reasonably necessary or appropriate,” and “addresses a

significant risk”); Bolon Tr. 57 (“implicit” feasibility findings made in 1993).

IV. Argument

A. § 1926.50 Is Invalid.

Section 1926.50(g) is invalid because, inter alia, it was not preceded and accompanied

by the required notices, opportunities and findings noted on p. 2; because OSHA failed

to find or show good cause for these omissions; and, as we first show, because it failed

to show that the Act “expressly” authorized the summary application of WHA, or

WHA‐derived, standards such as § 1910.151(c), to different work, such as construction.

1. Nothing in the OSH Act, “Express” or Otherwise, Indicates That

Established Federal Standards Could Be Applied “To The Extent” of

Applying to Different Work. It Shows the Contrary.

Although OSHA claims that OSH Act § 6(a) authorized OSHA to revoke § 1910.5(e)

and change the kind of work covered by the WHA standards, it never stated what

words in § 6(a) conferred this authority—a failure repeated in the PDR. There are no

such words.

Section 6(a) (quoted on p. 17) exempted OSHA, for two years, from APA and OSH

Act § 6(b) rulemaking requirements but only to the extent a document was a “national

consensus standard” or an “established Federal standard.” A corollary is the familiar

principle that OSHA was not permitted to make substantive changes in those

standards, for then it would not have adopted the “national consensus standards”

(Usery v. Kennecott Copper Corp., 577 F.2d 1113, 6 OSHC 1197 (10th Cir. 1977)) or the

“established Federal standards” (Underhill Constr. Corp. v. Sec’y of Labor, 526 F.2d 53, 57

(2d Cir. 1975)).

15
The question thus seems, on first glance, to boil down to whether the scope

provisions of established Federal standards that state the conditions or employment

(e.g., manufacturing) that the standards regulate are part of the “established Federal

standards” and thus may not be deleted. For national consensus standards, the answer

is clear: They may not be deleted. Noblecraft Indus., Inc. v. Secr’y of Labor, 614 F.2d 199,

204, 7 BNA OSHC 2059 (9th Cir. 1980) (unlawful to omit scope note excluding

sawmilling, structural plywood manufacture). Professor Rothstein says that the rule is

the same for established Federal standards: “OSHA coverage [of an established Federal

standard] may not be broader than the coverage of the original source standard....”

M. ROTHSTEIN, OCCUP. SAFETY AND HEALTH LAW § 4.9, p.94 (2012),9 citing Dravo Corp. v.

OSHRC, 613 F.2d 1120 (3d Cir. 1980); see also id. at 94‐95 (WHA‐derived standard must

be construed to cover only those machines it covered under the WHA, citing Diebold,

Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1976) (quoted on p. 26 below)). OSHA disagrees,

apparently taking the position that § 6(a)’s exemption from APA rulemaking

requirements is so broad that it could summarily change the work regulated by

established Federal standards.

The APA instructs courts to use a special, narrow and demanding criterion to

resolve such a question: The APA’s anti‐supersession provision, 5 U.S.C. § 559, states

that a “[s]ubsequent statute may not be held to supersede or modify this [act]..., except

to the extent that it does so expressly.” (Emphasis added.) A “departure from the [APA]

norm must be clear” (Dickinson v. Zurko, 527 U.S. 150, 155 (1999)) and meet a “rigorous

standard.”10 Because APA § 559 uses the word “except,” the agency has the burden of

                                                                    

(continued...)

9 He states: “...OSH Act coverage may not be broader than the coverage of the original

source standard, such as those promulgated under the LHWCA. Therefore, maritime

standards have been held not to be applicable to the structural shop of a shipbuilder.”

10 Nichols v. Bd. of Trustees, 835 F.2d 881, 895‐96 n. 105 (D.C. Cir. 1987). See also Marcello v.

Bonds, 349 U.S. 302, 310 (1955) (“[e]xemptions ... not lightly to be presumed”); Lane v.

16
proving the APA “expressly” inapplicable to the “extent” claimed. See n. 15 and

accompanying text. On APA questions, OSHA’s view is not entitled to deference. Prof.

Reactor Operator Soc’ty v. NRC, 939 F.2d 1047, 1051 (D.C. Cir. 1991).

Hence, § 6(a)’s exception from APA rulemaking applies only “to the extent” that it

rests on “express” statutory language—and no further. And because employers can be

penalized for violating § 1926.50(g), the constitutional rule requiring narrow

construction also applies. Comm. v. Acker, 361 U.S. 87, 91 (1959) (re civil penalties, “The

law is settled that ‘penal statutes are to be construed strictly.’”).

Thus, on closer examination, the true question here is: Did OSHA carry its burden of

showing that the OSH Act states “expressly” that scope provisions of established

Federal standards stating the work (e.g., manufacturing) that they regulate are not part

of the “established Federal standards”? Stated differently, did OSHA show that there is

language in the OSH Act that “expressly” permitted OSHA to not merely extend

established Federal standards without regard to federal contracts and navigability, but

farther—“to the extent” they would apply to work for which they were not written?

There is no such “express” language. Former § 1910.5(e)’s very existence so attested.

Had the Act contained such “express” language, OSHA would never have adopted

§ 1910.5(e).  

OSH Act § 6(a) states in part that, “Without regard to [the APA or OSH Act 6(b) ‐

(g)], the Secretary shall...by rule promulgate as an occupational safety or health

standard any national consensus standard, and any established Federal standard....”

Not one word there supplies any “express” evidence, or even hints, that OSHA was

permitted to summarily extend established Federal standards to work for which they

were not written. Indeed, Congress rejected a proposal to permit that. See p. 21 below.

                                                                    

Dep’t of Agric., 120 F.3d 106, 110 (8th Cir. 1997) (“forbids amendment of the APA by

implication”).

17
There are also no such “express” words in § 3(10)’s definition of “established Federal

standard.” On the contrary, § 3(10) expressly makes provisions of an “established

Federal standard” that define the “employment” and “places of employment” to which

the “standard” applies just as much a part of the “standard” as provisions stating

required “conditions,” “practices,” etc.  Section 3(10) defines an established Federal

standard as an “occupational safety and health standard.” An “occupational safety and

health standard” by definition (§ 3(8)) “requires conditions,” “practices,” etc., in

“employment” and “places of employment”—at least the latter two of which are

defined by scope provisions. Moreover, work‐defining scope provisions of established

Federal standards define the “extent” to which the standards were “established” and

were “operative” under § 3(10). Thus, work‐defining scope provisions are part of the

established Federal standards and cannot be disregarded.

That a scope provision is an integral and equal part of a standard is also clear from

APA § 551(4)’s definition of “rule” (which OSHA and WHA standards are) as “an

agency statement of general or particular applicability...designed to...prescribe law.”

(Emphasis added.) Inasmuch as scope provisions state “applicability,” they are as much

a part of a rule as those that “prescribe law.” Abbs v. Sullivan, 756 F.Supp. 1172, 1187

(W.D. Wis. 1990) (APA “rule” definition has “three distinct elements:...(2) of general or

particular applicability...”), vac. on juris. grnds, 963 F.2d 918 (7th Cir. 1992). Hence,

courts treat scope provisions like other parts of a rule. E.g., Reich v. Gen. Motors Corp.,

89 F.3d 313 (6th Cir. 1996) (OSHA may not ignore a word in scope provision); Reich v.

Simpson, Gumpertz & Heger, Inc., 3 F.3d 1, 2 (1st Cir. 1993) (same).

A contrary position would mean that a work‐ or equipment‐limiting scope provision

is not part of a “standard,” which would be absurd. Section 50‐204.1(a)’s specification of

the work regulated by the WHA standards is just as much a part of the established

Federal WHA standards as the scope provision for the agricultural standards in Part

1928 (§ 1928.1), or the scope provision for the construction fall standards in Subpart M

18
of Part 1926 (§ 1926.500), are of OSHA standards. It was about a scope‐defining word

(“crane”) in the text of a standard that the Commission spoke in Lisbon Contractors, Inc.,

11 BNA OSHC 1971, 1973‐74 (No. 80‐97, 1984): “The Secretary’s standards, which set

policy, strike a balance between the protection of employees and the imposition of

burdens on employers. To ignore the words of the standard and the underlying policy

choices that they reflect, is to upset that balance and substitute a new one.” The point

equally applies to scope provisions that are set out separately.

In sum, nothing in the Act’s words even comes close to being an “express”

indication that OSHA was authorized to summarily apply established Federal

standards “to the extent” that they would apply to work different than for which they

were written. All indications are to the contrary. The application of §§ 50‐204.6(c) and

1910.151(c) to construction was, therefore, invalid.

a. The Senate Report Passage Does Not Supply “Express” Evidence

That Established Federal Standards Could Be Summarily Applied

“To The Extent” That They Would Apply to Different Work. On the

Contrary, It Refutes OSHA’s Position.

OSHA, however, cites the following passage from a Senate report:

The purpose of this procedure is to establish as rapidly as possible national

occupational safety and health standards with which industry is familiar. ...

The bill also provides for the issuance in similar fashion of those standards

which have been issued under other Federal statutes and which under this act

may be made applicable to additional employees who are not under the

protection of such other Federal laws. Such standards have already been

subjected to the procedural scrutiny mandated by the law under which they

were issued;....

S. REP. NO. 1282, at 6 (1970) (emphasis added), Leg. Hist. at 145–46. OSHA argues (PDR

9‐10) that this passage grants it “authority, under section 6(a)..., to extend the coverage

of Walsh‐Healey Act standards, and other established federal standards....”

19
Even if committee report language could substitute for the “statute” demanded by

APA § 559, or were relevant at all,11 this language does not suggest, let alone state

“expressly,” the “extent” demanded by OSHA’s extravagrant reading—that the

established Federal standards could be summarily applied to work different than for

which they had been written. It does not hint that “additional employees” means all

employees, doing any kind of work. “Additional” means “added” or

“supplementary”—not any and all (NEW OXFORD AM. DICTIONARY 18 (2d ed. 2005)); it

connotes “uniting one thing to another” (BLACK’S LAW DICTIONARY 35 (5th ed. 1979))—

not everything and anything. Nothing in the report suggests—let alone “expressly”—

that established Federal standards would be extended to “additional employees” by

anything other than removing their restrictions to federal contracts and navigability.

If anything, the Senate report passage expressly refutes OSHA’s position, for it states

that the established Federal standards would be those “with which industry is familiar”

and that “have already been subjected to the procedural scrutiny mandated by the law

under which they were issued.” (OSHA agrees that Congress expected both criteria to

be satisfied. § 1910.1(a)).) As shown in Part III.B above, the construction industry had

neither been “familiar” with the WHA manufacturing standards nor had given them

“scrutiny.” Not only did the WHA not apply to construction, and not only did it lack

“general applicability to industry (p. 3 above),” but announcements of proposed and

final WHA standards stated that they would apply to “supply” contracts. They said

nothing about construction or gave notice to the construction industry that the

standards might be applied to them. And it was only manufacturers, not constructors,

who gave “scrutiny” to the WHA standards, and only “to the extent” they applied to

                                                                    

11 Shannon v. United States, 512 U.S. 573 (1994) (“courts have no authority to enforce [a]

principl[e] gleaned solely from legislative history that has no statutory reference

point.”) (quoting Elec. Workers Local 474 v. NLRB, 814 F.2d 697, 712 (D.C. Cir. 1987)).

20
manufacturing, not construction. Even OSHA has acknowledged that notice to and

scrutiny of standards by manufacturers does not substitute for notice to and scrutiny by

constructors. Pp. 36, 41 (regarding, e.g., lead, cadmium, bloodborne pathogens and

electrical standards); Bolon Tr. 36‐37. OSHA’s reading would therefore negate the

Senate report’s express assurances to the Senate.

Moreover, Congress rejected language that would have authorized OSHA’s

position. The version of § 6(a) in the committee bill reported to the House stated: “The

Secretary shall...by rule promulgate...any established Federal standard then in effect

(not limited to its present area of application)....” H.R. 16785, 91st Cong., at 7 (April 7, 1970);

Leg. Hist. at 721, 727 (emphasis added). The competing Steiger bill (H.R. 19200, 91st

Cong., at 8 (Sept. 15, 1970); Leg. Hist. at 763, 770), lacked that phrase. It was the Steiger

bill that was adopted by the House. Leg. Hist. at 1092, 1094, 1114. (The OSH Act is often

known as “the Williams‐Steiger Act.” E.g., 29 C.F.R. Part 1975, “Coverage of Employers

Under the Williams‐Steiger Occupational Safety and Health Act of 1970.”)

OSHA’s position would defeat congressional intent in a third way: It would violate

Congress’s direction that all construction industry standards be developed using the

mechanisms not merely of the OSH Act but also of the CSA. The conference committee

that adopted the OSH Act in its final form stated (Leg. Hist. at 1186):

The conferees intend that the Secretary develop health and safety standards

for construction workers covered by [the CSA,] pursuant to the provisions of that

law and that he use the same mechanisms and resources for the development of

health and safety standards for all the other construction workers newly covered by

this Act.... [Emphasis added.]

Before a construction standard may be adopted, the CSA requires not just consultation

with ACCSH but also public notice to the construction industry, an opportunity to

comment, and a public hearing. CSA § 107(a), 40 U.S.C. § 333. Under OSHA’s position,

however, it may simply declare WHA standards applicable to construction without

21
these CSA safeguards and even if, as here, the Labor Department had, in a notice‐and‐

comment rulemaking, already decided to not adapt that standard to construction.  

OSHA’s position also violates Fifth Amendment due process because it is based on

an arbitrary and capricious inconsistency—that only the WHA standards were

extended to all industries, and not the CSA and LHWCA standards.12 Confirming this

arbitrariness is that OSHA never explained the difference in treatment, either in the

Federal Register (Bolon Tr. 95 (“[t]here’s no explanation of the difference”)) or before

the Judge. OSHA never pointed to any feature of the WHA standards that suggested

(contrary to their scope provisions) that they could be applied to all industries. It never

explained why it deleted only § 1910.5(e), and did not delete from §§ 1910.12‐.16 their

restrictions to “construction,” “ship breaking,” etc. (thereby extending the CSA and

LHWCA standards to all industries).

There is a reading, however, that does give effect to the Senate report’s assurance

that the established Federal standards are those “with which industry is familiar” and

that “have already been subjected to the procedural scrutiny mandated by the law

under which they were issued,” and permits their extension to “additional employees.”

It is OSHA’s original reading: That the established Federal standards may apply to

“additional employees” performing the same work that the standards were designed to

regulate but without regard to whether their employers have federal contracts or work

on navigable waters. Under this reading, CSA standards could be applied under the

                                                                    

12 Dent v. W. Virginia, 129 U.S. 114 (1889) (“due process of law ... exclude[s] everything

that is arbitrary and capricious”). Even before APA § 706(2)(A), administrative action

could be struck down as arbitrary and capricious. Pac. States Box & Basket Co. v. White,

296 U.S. 176 (1935); Nat’l Clients Coun., Inc. v. Legal Servs. Corp.,617 F.Supp. 480, 485‐86

(D.D.C. 1985) (pre‐APA requirement for “rationally based” agency action no different

than APA’s arbitrary, capricious standard); Tex. Rural Legal Aid, Inc. v. Legal Servs. Corp.,

940 F.2d 685, 697 (D.C. Cir. 1991) (same).

22
OSH Act to construction affecting commerce, instead of only federally‐contracted

construction; the WHA standards would apply to manufacturing affecting commerce,

instead of only federally‐contracted manufacturing; and the LHWCA standards would

apply to maritime work affecting commerce, instead of only maritime work on

“navigable” waters.  

By contrast, OSHA’s reading of the report permits far‐reaching absurdities. If OSHA

could have disregarded the established Federal standards’ scope provisions, it could

have applied manufacturing standards to construction, agriculture, deep‐sea diving,

ship breaking, anything. Bolon Tr. 86‐88. And, vice versa, CSA standards could have

been applied to manufacturing, agriculture, etc. Bolon Tr. 105‐06. Such extravagant

readings of legislative history must be avoided. E.g., In re Sinclair, 870 F.2d 1340, 1342‐43

(7th Cir. 1989) (declining to follow conference statement). Just as “Congress...does not

alter the fundamental details of a regulatory scheme in vague terms or ancillary

provisions—it does not...hide elephants in mouseholes” (Whitman v. Am. Truck. Ass’ns,

531 U.S. 457, 468 (2001))—even less does it does so in legislative history.

In sum, OSHA’s position would defeat the report’s express assurances to the Senate,

take the legislative history snippet there far beyond any “extent” to which it “expressly”

supports a departure from APA rulemaking, defeat congressional intent and, without

reason, read the Senate report so extravagantly as to be absurd.

b. The WHA Standards Applied Only to Manufacturing.

It is also indisputable that the WHA standards applied only to manufacturing:

 Section 50‐204.1(a) stated that the WHA standards apply to ”the manufacture or

furnishing of materials, supplies, articles, and equipment.” Section 50‐204.1(c)

stated that “This Part 50‐204 expresses the Secretary of Labor’s interpretation and

application of [Walsh‐Healey Act § 1(e)] with regard to certain particular working

conditions.” (Emphasis added.) Even within manufacturing, the WHA standards

were “for application to ordinary employment situations” and did not “purport

23
to describe all of the working conditions which are [unsafe to]...employees.”

§ 50‐204.1(d).

 The WHA standards were based on an “evaluation” and “[c]ausative analysis of

injury frequency rates” in “industrial establishments.” 25 Fed. Reg. at 13809.

 OSHA’s official EMPLOYMENT LAW GUIDE (p. 5) states that the WHA applies to

“employees who produce, assemble, handle, or ship goods under” contracts for

“the manufacturing or furnishing of materials, [etc.].”

Moreover, the WHA standards (and § 50‐204.6(c) specifically) were affirmatively

inapplicable to construction:

 The legislative histories of the WHA and CSA Acts state that the WHA did not

apply to construction. See pp. 3‐6 above, which describe how, while the WHA

was being fashioned, the House removed language covering “construction” from

the Senate bill that eventually became the WHA, and defeated an attempt to re‐

insert it.

 OSHA’s regulation (§ 1926.15(a)) states that “None of the described working

conditions [in 41 C.F.R. Part 50‐204] are intended to deal with construction

activities....”  

 The courts have long so held. E.g., Gracey v. Elec. Workers Local 1340, 868 F2d 671,

673 (4th Cir. 1989) (“Workers on federal construction contracts were protected

under the Davis‐Bacon Act...while those performing work under federal supply

contracts were covered by the Walsh‐Healey Public Contracts Act....”).

 As to § 50‐204.6(c) specifically, under the CSA the Labor Department chose to not

adapt § 50‐204.6(c) for use in construction. See p. 7 above.

Accordingly, applying the WHA standards to construction was a substantive change.

c. The Case Law Cited By OSHA Is Inapposite.

None of the cases that OSHA cites is apposite, for none dealt with whether WHA

standards could validly be applied to construction or non‐manufacturing work. None

24
considered APA § 559 or the other materials referenced here. The expressions that

OSHA cites are not only inapposite but are general, in disregard of the Supreme Court’s

admonition that “general expressions transposed to other facts are often misleading.”

Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944). Inference from such language is far

too feeble to be considered equivalent to the “express” statutory language demanded by

APA § 559.

 American Can did not involve different work, but application of the WHA

manufacturing standards to manufacturing. Moreover, it did not broadly uphold the

deletion of WHA scope provisions. It upheld the deletion of only certain passages in the

WHA scope provisions and only because they were so “anomalous” under the Act as to

be “inconsistent” with “congressional intent.” Thus, the Commission found that the

“legality, fairness or propriety” provision of § 50‐204.1(c) “would have introduced

elements of an enforcement scheme that Congress found unsuitable for broadly

regulating worker safety and health.” 10 OSHC at 1311‐12 (“more than anomalous”;

“specially reflected” WHA’s “inflexible,” “very different enforcement scheme”). The

Commission took a “similar view” of § 50‐204.1(a)’s quotation from WHA § 1(e)’s state‐

law provision: Not only was “Congress’ purpose...to supersede” this provision, but

adopting it would have “circumvented...the state plan provision of the [OSH] Act.”

10 OSHC at 1312‐13 (“peculiar feature,” “odd state of affairs”). None of that can be said

of this case; nothing indicates that limiting WHA‐derived manufacturing standards to

manufacturing would be inconsistent with or circumvent congressional intent, and

OSHA has never made such a ridiculous claim. Moreover, American Can did not involve

features of the WHA scope provisions that reflected substantive safety judgments as to

which “employment” and “places of employment” (under § 3(8) and thus § 3(10)) the

WHA standards regulated. American Can is thus not only inapposite, but any inferences

from its language would be far too feeble to be considered equivalent to the “express”

statutory language demanded by APA § 559.

25
 Bechtel Power Corp., 4 BNA OSHC 1005 (No. 5064, 1976), aff’d, 548 F.2d 248 (8th

Cir. 1977), did not deal with the application of WHA manufacturing standards to

construction, but application of CSA standards (Part 1926) to construction—specifically,

to an employer whose employees were working on a construction site and exposed to

construction hazards. More importantly, the validity issue there was not whether

OSHA could extend the CSA standards to different work, but, by dropping contractual

status as a coverage criterion, could extend coverage to different entities. 4 OSHC at

1008 col. 2 (at headnote 3): “Bechtel...argues that, in adopting the [CSA] standards...,

the Secretary was not authorized to expand their coverage to employers other than

contractors and subcontractors”—the entities to which the CSA applies. And as shown

on p. 35, Bechtel’s reliance on § 1910.11 is irrelevant to a WHA standard. Thus, Bechtel

falls far short of supplying the “express” evidence on the different‐work issue

demanded by APA § 559.

 Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1976), involved application of a

former WHA manufacturing standard to manufacturing, not construction. Moreover, as

Professor Rothstein notes, the court rejected OSHA’s position: “the Secretary may not

enforceably construe a [§ 6(a)] standard to impose requirements which the standard’s

source did not impose. .... Thus,...whether § 1910.212 applies to press brakes is

determined by whether its Walsh‐Healey source applied to press brakes.” 585 F.2d at

1332. That is this case, for the WHA standards did not impose requirements on

construction. The Secretary, however, relies on an ambiguous dictum in a footnote: “the

Secretary could properly extend the § 655(a) standards to cover employees whose

employers were not governed by the source standards, as long as the extension did not

operate to create a protection which had not been afforded to workers who were

covered by the source.” 585 F.2d at 1332 n.6. OSHA reads this to mean that the court

approved extending manufacturing standards to construction without rulemaking. Not

only does it not say that (the footnote is warning against expanding equipment‐based

26
source standards, which is what Diebold involved), but the Supreme Court recently

admonished courts to “resist reading a single sentence unnecessary to the decision as

having done so much work.” Ark. Game & Fish Comm. v. United States, 568 U.S. _ (2012)

(slip. op. at 11). OSHA has never denied that extending WHA standards to work they

did not cover is a substantive change. Yet, the same footnote states that substantive

changes “would render the standard unenforceable.” OSHA would thus take out of

context an ambiguous dictum in a footnote to override a clear holding in text. That falls

far short of meeting APA § 559’s requirement for “express” statutory language.

 Lee Way Motor Freight, Inc. v. Secretary, 511 F.2d 864 (10th Cir. 1975), likewise

involved application of WHA standards to non‐construction. Moreover, it did not

involve a validity issue, let alone whether the WHA standards could validly be applied

to non‐manufacturers. No form of “valid” or its synonyms appear in either the

Commission or the court opinion. The court did not mention the substantive‐change

issue, nor the lack of notice‐and‐comment rulemaking, nor their significance. The only

issue raised by the employer was whether a former WHA standard should be construed

to apply more broadly than it applied under the WHA. That is not the issue here.

In sum, OSHA’s validity argument has no merit. Nothing in the Act’s words or

legislative history comes even close to being the “express” indication that OSHA was

authorized to summarily apply established Federal standards “to the extent” that they

would apply to work different than for which they were written. All indications are to

the contrary. Inasmuch as § 50‐204.6(c) applied only to manufacturing and, in any

event, affirmatively did not apply to construction, OSHA had no authority to extend it

to construction without rulemaking.13

                                                                    

(continued...)

13 The Commission need not hold that the WHA‐derived standards are invalid as

applied to all non‐manufacturing. It could more narrowly hold that the WHA‐derived

standards, or § 1926.50(g) in particular, do not validly apply to construction. First,

§ 1926.15(b) states, “None of the described working conditions [in 41 C.F.R. Part 50‐204]

27
d. The Revocation of § 1910.5(e) Was Invalid For Other Reasons.

We showed above that § 1910.5(e), which excluded construction and other non‐

manufacturing work from the scope of WHA‐derived standards (Bolon Tr. 64‐66),

confined the former WHA standards to their lawful scope, and thus that its revocation

was unlawful.

But the revocation of § 1910.5(e) was unlawful for other reasons as well: It was done

without explanation, without consideration of the language of the Act and its legislative

history, without explanation of the change in position (i.e., why OSHA thought in May

1971 that the WHA standards could not be applied to manufacturing but in September

1971 thought that they could), and without explanation of why the WHA standards

were treated differently—why they, but not the CSA or LHWCA standards, were

expanded to all workplaces. Bolon Tr. 95 (“[t]here’s no explanation of the difference”).

Not only is such conduct arbitrary and capricious (see n. 12 above and accompanying

text), but OSHA’s failure to explain the inconsistency violated the requirement that “an

agency changing its course by rescinding a rule is obligated to supply a reasoned

analysis for the change beyond that which may be required when an agency does not

act in the first instance.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 42 (1983). Furthermore, because § 1910.5(e) stated a substantive rule of

applicability, it could not be revoked without giving public notice and inviting public

comment. Am. Mining Congress v. MSHA, 995 F.2d 1106, 1108‐13 (D.C. Cir. 1993). (Even

interpretive rules may not be revoked without notice and comment. Alaska Professional

Hunters Ass’n v. FAA, 177 F.3d 1030, 1033‐34 (D.C. Cir. 1999).) Inasmuch as § 1910.5(e)

was unlawfully revoked, it should be treated as if it were still in effect.

                                                                    

are intended to deal with construction activities...,” which reflects the legislative

histories of the WHA and CSA Acts (pp. 3, 6). Second, as shown on p. 7, the Secretary

decided to forgo adaptation of the WHA ancestor of § 1910.151(c) to construction.  

28
Before Judge Simko, OSHA argued that § 1910.5(e) had to be revoked because it

created a “conflict” with §§ 1910.5(c)(2) and 1910.11(a). Inasmuch as this argument did

not appear in the revocation’s preamble, reliance on it would violate the pre‐APA rule

of SEC v. Chenery, 318 U.S. 80, 95 (1943)—that “an administrative order cannot be

upheld unless the grounds upon which the agency acted in exercising its powers were

those upon which its action can be sustained.” See also N. Air Cargo v. Postal Service,

674 F.3d 852, 860 (D.C. Cir. 2012) (agency action may be upheld only on the basis of the

agency’s own contemporaneous justification, not post hoc argument of counsel).

Even if the argument were considered, it is meritless. First, there was no “conflict”

with § 1910.11(a), for neither § 1910.11(a) nor Subpart B applies to WHA‐derived

standards. Contrary to the PDR, § 1910.11 did not “adopt and extend the applicability

of” the WHA standards (or, indeed, any established Federal standards). Instead,

§ 1910.11 states that provisions of Subpart B adopted and extended the applicability of

certain established Federal standards—but the WHA standards were not among them.

The WHA standards had instead been adopted and extended by being copied into Part

1910. See p. 9 above and § 1910.1(b), in Subpart A, which states that Part 1910

“contains” established Federal and consensus standards. Thus, there could not have

been a “conflict” with § 1910.11—and, as shown in Part IV.A.2.a(ii) below, even less

with § 1910.5(c)(2).

Second, even if § 1910.11 applied, there still would not have been any “conflict.”

Sections 1910.5(c)(2) & (e) and 1910.11(a) would have together amounted to a statement

that WHA‐derived standards apply to all commerce‐affecting employers engaged in

manufacturing—just as §§ 1910.5(c)(2), 1910.11(a) and 1910.12 together amount to a

statement that the CSA standards apply to all commerce‐affecting employers engaged

in construction. Just as § 1910.12 limits the reach of the CSA standards to “construction

work” without “conflicting” with § 1910.11(a) or § 1910.5(c)(2), § 1910.5(e) limited the

reach of the WHA standards to manufacturing without “conflicting” with § 1910.11(a)

29
or § 1910.5(c)(2)). Like these other provisions, §§ 1910.5(e) and 1910.11(a) spoke to

different points, with one speaking generally and one speaking more narrowly, and

with one qualifying the reach of the other.

Third, if there were a conflict, it was arbitrary and capricious to resolve it by

applying the WHA manufacturing standards to construction and everything else.

Dominion Res., Inc. v. FERC, 286 F.3d 586, 593 (D.C. Cir. 2002) (“arbitrary and

capricious” to “use[] a tank to block a mousehole”). If “conflict” had actually been

OSHA’s concern, it could simply have re‐written § 1910.11 to state that the standards

apply to that aspect of commerce stated in their respective scope provisions. That

“conflict” had nothing to do with OSHA’s action can also be seen from OSHA’s failure

to revoke the work‐limiting phrases (such as “construction work”) in §§ 1910.12, .13‐.16.

Before Judge Simko, the observation was made that these phrases equally “conflicted”

with 1910.11, and yet they were not revoked. KPCC challenged OSHA to explain why

they too had not been revoked, and why the CSA and LHWCA standards too were not

applied to all work. OSHA had no answer.

Fourth, no supposed “conflict” in an agency’s rules can justify a statutory

violation—the application of the WHA standards to work that they did not previously

cover, and thus an unlawful substantive change. Rather than violate the Act, OSHA

should, if it were truly necessary, have just re‐written its rules.

e. OSHA Was Not Authorized By § 4(b)(2) To Apply The WHA

Standards To Construction.

OSHA may argue that, or the Commission may ask whether, OSH Act § 4(b)(2)

authorized application of the WHA standards to construction. Aside from

insurmountable Chenery problems (OSHA relied on § 6(a), not § 4(b)(2)), such an

argument would contravene § 4(b)(2)’s words and make § 6(a) redundant, and it is

directly refuted by the Act’s legislative history. It would also permit anarchic

absurdities: Standards written for manufacturing would be applied to construction,

30
agriculture, longshoring or shipbuilding; construction, longshoring and shipbuilding

standards would apply to manufacturing and agriculture.

Section 4(b)(2) states that “[t]he safety and health standards promulgated under” the

WHA, CSA, LHWCA, and other statutes “shall be deemed to be occupational safety

and health standards issued under this Act, as well as under such other Acts.” Even if

this language meant that the WHA, LHWCA, and CSA standards could be enforced

against “employers” under the OSH Act and without regard to § 6(a) (and it does not

mean either, as we show below), not one word in § 4(b)(2) suggests that the work

covered by the “standards” would change—that, for example, manufacturing standards

would apply to construction, or vice versa. The reason is simple: The “standards”

deemed by § 4(b)(2) “to be occupational safety and health standards issued under this

Act” are “[t]he safety and health standards promulgated under” the WHA, CSA,

LHWCA, and other statutes. As so “promulgated,” those standards came with their

own scope provisions. Nothing in § 4(b)(2) provided a mechanism for stripping them

out, or authority to ignore them or change the work they cover.

Nor does § 4(b)(2) mean that the standards listed there are enforceable against

“employers.” All that § 4(b)(2) said and, as shown below, all that Congress meant, was

that, even before established Federal standards were adopted under § 6(a), OSHA could

issue under OSH Act §§ 9(a) and 17 (both of which permit prosecutions for violations of

either § 5(a) or “standards”) citations and penalties against government contractors and

maritime employers alleging violations of the WHA or CSA standards as “promulgated

under” those statutes, i.e., with their scope provisions. Gen. Motors Corp., 9 BNA OSHC

1331 n.17 (No. 79–4478, 1981) (under § 4(b)(2), “Walsh‐Healey standards could have

been enforced against government contractors under the [WHA] or the [OSH] Act”)

(emphasis added). Penalties under the WHA were known for their weakness (American

Can, 10 OSHC at 1312) and Congress wanted OSHA to use OSH Act sanctions until the

established Federal standards were adopted. That is what Congress meant by saying

31
that the enforcement process of the OSH Act would be “added” to those of the previous

statutes. H.CONF.REP. 91‐1765, at 33 (1970), Leg. Hist. at 1186. The standards that would

have been cited would have been just what § 4(b)(2) identified—the standards

“promulgated under,” for example, the CSA, with their native scope provisions intact,

not as the standards would be separately adopted under § 6(a). Any other reading

would make § 6(a) redundant.

Representative Steiger, a chief architect of the OSH Act, expressly so stated

immediately before the vote on the Conference Report:

Let me add a comment on what may appear to be an inconsistency between

the last sentence of section 4(b)(2) and the expedited procedures set out in section

6 to adopt early interim standards. The last sentence in section 4(b)(2) is included

to insure that standards under existing laws will not be repealed by this

enactment and will remain effective until superseded by the promulgation of

standards under section 6(a) . At that time the newly promulgated standards will

become standards under this Act and existing laws, thereby preserving remedies

available under existing laws. To construe this provision otherwise would be to make

the early standards‐setting procedures in section 6(a) meaningless or a mere redundancy.

Leg. Hist. 1217 (emphasis added). Section 4(b)(2) would accomplish what Mr. Steiger

intended only if it is read literally—e.g., if the CSA standards could be applied under

the OSH Act with their native scope provisions restricting them to federal contractors.

Otherwise, § 6(a) would indeed be “meaningless or a mere redundancy.”

The above explains why OSHA did not rely on § 4(b)(2) in its 1971 actions or in its

response to KPCC’s motion: The standards mentioned in § 4(b)(2) were citable only

against government contractors and maritime employers (rather than employers in

commerce) and were the standards as “promulgated under” the prior statutes, i.e., with

their native scope provisions intact, for § 4(b)(2) gave OSHA authority no authority to

remove, disregard, or amend them. Thus, § 4(b)(2) is inapposite.  

32
2. OSHA Has The Burden of Proving That The 1993 Adoption of § 1926.50(g)

Fell Within An Exception to Rulemaking Requirements.

Section 1926.50(g) is also invalid because OSHA failed to demonstrate good cause

for dispensing with public notice and comment and OSH Act rulemaking findings.

Inasmuch as APA § 553(b)(3)(B) provides an “exception,”14 the burden is on OSHA

to establish it.15 The exception is “narrowly construed and reluctantly countenanced,”16

and poses a “high bar.” United States v. Valverde, 628 F.3d 1159, 1164 (9th Cir. 2010).

“[C]ircumstances justifying reliance on this exception are ‘indeed rare’ and will be

accepted only after the court has ‘examine[d] closely proffered rationales justifying the

elimination of public procedures.” Council of the S. Mtns, Inc. v. Donovan, 653 F.2d 573,

580 (D.C. Cir. 1981). Judicial review on the issue is de novo.17  

                                                                    

14 E.g., Mack Trucks, Inc. v. EPA, 682 F.3d 87, 92 (D.C. Cir. 2012) (“exception”); Nat’l

Nutritional Foods Ass’n v. Kennedy, 572 F.2d 377, 384 (2d Cir. 1978) (“exceptions”).

15 Action on Smoking & Health v. CAB, 713 F.2d 795, 801 n.6 (D.C. Cir. 1983) (“onus on the

[agency]”); Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144, 1146 (D.C. Cir. 1992)

(“exception”; agency “failed to demonstrate sufficient cause for setting aside these

important safeguards”); N. Arapahoe Tribe v. Hodel, 808 F.2d 741, 751 (10th Cir. 1987)

(agency “bears the burden”).

16 Tenn. Gas, 969 F.2d at 1144; New Jersey v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980)

(same); see also Ind. Guard Ass’n Local No. 1 v. O’Leary, 57 F.3d 766, 769 (9th Cir. 1995)

(“narrowly construed”); Levesque v. Block, 723 F.2d 175, 184 (1st Cir. 1983) (same); Mobay

Chem. Corp. v. Gorsuch, 682 F.2d 419, 426 (3d Cir.) (same), cert. denied, 459 U.S. 988 (1982);

Note, The “Good Cause” Exceptions: Danger to Notice and Comment Requirements Under the

Administrative Procedure Act, 68 GEO.L.J. 765, 773 (1980).

17 “It will thus be the duty of reviewing courts ... to determine the meaning of the words

and phrases used. For example, in several provisions the expression ‘good cause’ is

used.” H.REP. NO. 752, 79TH CONG. (1945), reprinted in LEGIS. HISTORY OF THE APA,

S.DOC. NO. 248, 79TH CONG., at 200 (1946). Accord, Mid‐Tex Elec. Coop., Inc. v. FERC,

822 F.2d 1123, 1132 (D.C. Cir. 1987) (”close” examination); Reno‐Sparks Indian Colony v.

EPA, 336 F.3d 899, 909 n. 11 (9th Cir. 2003) (“de novo”); Wash. State Farm Bureau v.

Marshall, 625 F.2d 296, 306 (9th Cir. 1980) (“free to make an independent

determination”).

33
a. Inasmuch as OSHA’s Statement of Good Cause Failed to Show That

§ 1910.151(c) Applied to Construction, OSHA Failed To Show Good

Cause for Asserting That Its Action “Does Not Affect the

Substantive Requirements...of the Standards.”

OSHA’s claim of “good cause” in 1993 rests on its assertion that its action did “not

affect the substantive requirements or coverage of the standards...[, or]...modify or

revoke existing rights or obligations, nor...establish new ones.” 58 Fed. Reg. at 35076.

An agency must do more than assert good cause; it must support the assertion. A

good cause finding must “incorporate[ ]...a brief statement of reasons therefor....” APA

§ 553(b)(3)(B). “A true and supported or supportable finding of necessity or emergency

must be made and published.” H.REP. NO. 752, 79TH CONG. (1945), reprinted in LEGIS.

HISTORY OF THE APA, S.DOC. NO. 248, 79TH CONG., p 200 (1946). “Conclusory” assertions

are insufficient. Mobil Oil Corp. v. DOE, 610 F.2d 796, 803 (Temp. Emer. Ct. App. 1979).

OSHA’s statement of good cause (58 Fed. Reg. at 35077 col. 1) did not explain or

support its assertion that OSHA’s action changed nothing. It did not explain how, or

even assert that, all Part 1910 standards—including all WHA‐derived standards (such

as § 1910.151(c)) and all national consensus standards—always apply to construction as

a matter of law. Moreover, such an assertion would have been untrue and, as shown on

p. 36 below, OSHA knew it would have been untrue.

(i) Counsel’s Attempt to Prove The Applicability of the WHA

Standards to Construction Is Procedurally Improper and

Meritless.

To fill the gap in OSHA’s 1993 good cause statement, OSHA’s counsel argues (PDR

at 6) that § 1910.11(a) declared that Part 1910 standards apply “with respect to every

employer, employee, and employment covered by the Act.” Counsel has also argued

that OSH Act § 6(a) and case law authorized OSHA to apply WHA standards to

construction and to revoke § 1910.5(e).

Inasmuch as none of these arguments appeared in the statement of reasons that

accompanied the good cause finding, they must be disregarded. Mack Trucks, Inc. v.

34
EPA, 682 F.3d 87, 95 (D.C. Cir. 2012) (“cannot consider” agency arguments not in good

cause statement); United States v. Johnson, 632 F.3d 912, 928 (5th Cir. 2011); Buschmann v.

Schweiker, 676 F.2d 352, 357 (9th Cir. 1982) (reasons must accompany rule). Moreover,

under the pre‐APA rule Chenery rule, “an administrative order cannot be upheld unless

the grounds upon which the agency acted in exercising its powers were those upon

which its action can be sustained.” In any event, none of the arguments have merit.

(ii) Sections 1910.5(c)(2) and 1910.11(a) Could Not Have Authorized

The Extension of WHA Standards To Construction.

There is something quite odd about OSHA’s principal validity argument: It rests on

OSHA’s rules, rather than statutes. PDR at 2‐3: “Adopted established federal standards,

such as § 1910.151(c), have general application and may be applied to employers in

construction and other industries...,” citing §§ 1910.5(c)(2) and 1910.11(a). But the

validity question turns on statutes, not rules, for rules cannot authorize a departure

from the APA or OSH Act § 6(b), or extend standards farther than § 6(a) authorized.

OSHA cannot disagree, for it has made the same argument. In Solis v. Summit

Contractors, Inc., 558 F.3d 815 (8th Cir. 2009), OSHA argued that § 1910.12 (which

appeared unheralded in the same announcement as §§ 1910.5(c)(2) and 1910.11(a))

would be “invalid” if understood to “alter” the established Federal standards “in any

substantive way.” Sec’y Br. in Summit at 43‐44 (filed July 30, 2007) (in appendix).  

The argument also relies on a misstatement. As shown on p. 29 above, contrary to

the PDR, § 1910.11 did not “adopt and extend the applicability of” the WHA standards

(or, indeed, any established Federal standards). Instead, § 1910.11 states that provisions

of Subpart B adopted and extended the applicability of certain established Federal

standards—but the WHA standards were not among them. See p. 9 above and

§ 1910.1(b), in Subpart A, which states that Part 1910 “contains” established Federal and

consensus standards. Thus, § 1910.11 is irrelevant to this case.

35
b. The 1993 Preamble’s Vague Allusion to § 1910.5(c) Does Not Show

“Good Cause” for Dispensing with Rulemaking.

As noted on p. 34, OSHA’s statement of good cause did not explain or support its

implied position that all Part 1910 standards—including all WHA‐derived standards

and all national consensus standards—always apply to construction as a matter of law.

Elsewhere—not in the statement of good cause but in a “background” section

(58 Fed. Reg. at 35076)—the preamble briefly and vaguely referred to § 1910.5(c): “In a

number of cases, the Agency has determined that it is appropriate to cite a construction

employer for violation of a part 1910 standard, to effectuate the purposes of the OSH

Act. (See 29 CFR 1910.5(c)....”). OSHA thus seemed to imply, without outright stating,

that a Part 1910 standard would apply to construction so long as no specifically

applicable standard in Part 1926 preempted it.

First, the APA requires reasons to be “state[d],” not implied. OSHA was required to

explain, if it could, how § 1910.5(c) authorized the verticalizations, and it did not.

Implication—especially outside the good cause statement—does not suffice.  

Second, OSHA could not have explained how § 1910.5(c) authorized verticalizations,

for it well knew that the implication was not, in the words of the APA’s legislative

history, “true and supported or supportable.” As we show below, by 1993, OSHA had,

despite § 1910.5(c), acknowledged that there are Part 1910 standards without Part 1926

counterparts that do not apply to construction because they were not originally

intended to so apply. OSHA had even undone verticalizations on that ground. On none

of these occasions did OSHA mention § 1910.5(c), or suggest that the absence of a

preempting standard in Part 1926, or the mere presence of a standard in Part 1910,

means that the Part 1910 standard applies to construction. For example:

 In 1990 OSHA stated that the electrical standards, which have no express

exclusion for construction, do not apply to construction because they were not

originally intended to so apply. Letter from G. Reidy (OSHA) to G. Kennedy (NUCA)

36
(1990), available at www.osha.gov/pls/oshaweb/owadisp.show_document?p_table

=INTERPRETATIONS&p_id=20081 (SJ Attach. G). See 55 Fed. Reg. at 31986 col. 3.

 In 1992, OSHA formally stated that the Bloodborne Pathogen Standard,

§ 1910.1030, which appears in Part 1910 and does not expressly exclude construction,

“does not apply to the construction industry [because] the construction industry was

not explicitly afforded notice [by the proposed standard] and, in fact, did not participate

in the rulemaking process.” Letter from Sec’y of Labor L. Martin to R. Georgine,

“Constr. Activities and Operations and the Bloodborne Pathogens Standard” (1992) (SJ

Attach. H), available at www.osha.gov/pls/oshaweb/owadisp. show_document?p_table

=INTERPRETATIONS&p_id=20968.

 In 1996 OSHA revoked its 1993 verticalization of several Part 1910 electrical

standards into Part 192618 because they were intended to apply only to “general

industry” work rather than to construction. See 61 Fed. Reg. 41738 (1996), citing the

preamble at 55 Fed. Reg. 31984 (1990) (Part 1910 electrical standards limited to “general

industry and maritime”),19 and revoking the adoption of §§ 1926.416(a)(4), (f) and (g),

and 1926.417(d). OSHA stated that, because their Part 1910 counterparts “did not apply

to construction employment[,]...[a]ny application of §§ 1910.333‐334 to construction

work would require further rulemaking.” 61 Fed. Reg. at 41738 col. 2.

OSHA would never have revoked these verticalizations or declared these Part 1910

standards inapplicable to construction had it believed that § 1910.5(c) meant that all Part

1910 standards automatically apply to construction, even if they were not originally

                                                                    

18 §§ 1910.333(c)(2), (10); .334(a)(1), (2)(iii), (5), (b)(1)‐(2), (c)(1)‐(3); .333(b)(2), adopted as

§§ 1926.416(a)(4), (f) & (g), and 1926.417(d). 58 Fed. Reg. at 35179‐35181, 35305‐06.  

19 55 Fed. Reg. 31984 col. 1, 31986 cols. 2‐3 (1990) (electrical standards would apply to

“general industry”; rulemaking limited to “general industry and maritime”;

construction excluded.). See also 46 Fed. Reg. 4034, 4039 (1981).

37
intended to be so applied. These examples also explain why OSHA did not in 1993

forthrightly say that the absence of a preempting Part 1926 standard meant that a Part

1910 standard necessarily applied to construction, or say that mere presence in Part

1910 means that a standard necessarily applies to construction. OSHA knew that such

assertions would be untrue. Bolon Tr. 46 (agreeing that “unpreempted Part 1910

standards don’t automatically apply to construction work”; applicability “depends on

their rulemaking history.”). As Judge Simko observed (JD 8, 9), a Part 1910 standard

“may or may not” apply to construction. The idea that all Part 1910 standards apply to

construction unless there is a preempting construction standard is a myth that not even

OSHA believes.

Moreover, OSHA would have been unable to explain how § 1910.5(c) could lawfully

have authorized verticalizations. Section 1910.5(c) could not validly be used to apply to

construction a WHA‐derived standard that was not intended to so apply, for that

would have substantively changed the application of the WHA ancestor. No regulation,

let alone one not adopted in notice‐and‐comment rulemaking, may have that effect. See

p. 35 above.

In sum, OSHA was required by the APA to explain how, as a matter of law, all Part

1910 standards applied to construction, and it did not. Nowhere did OSHA make a

finding on what it has admitted is the only relevant point—that the verticalized

standards applied all along to construction as a matter of law. Bolon Tr. 46. Nowhere

did OSHA state that it had examined the standards’ rulemaking history and determined

that the standards applied to construction. Inasmuch as OSHA failed to consider or

explain how WHA‐derived standards applied to construction in the first place, its good

cause finding was not “based on a consideration of the relevant factors” and “entirely

failed to consider an important aspect of the problem.” Motor Veh. Mfrs. Ass’n v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (invalid as “arbitrary and capricious”).

38
There is another reason why OSHA could not have relied on § 1910.5(c). OSHA did

not dispute KPCC’s showing (Mot. 35‐36) that § 1910.5(c) indicates only which of two

applicable standards is controlling if one is generally applicable and one is more

specifically applicable and thus preemptive. Section 1910.5(c) is inapposite if (as here)

one of the two standards is not applicable in the first place—a point that rests not upon

§ 1910.5(c) (which is silent on the matter) but on the standard’s rulemaking history. That

is the way that § 1910.5(c) is written: Paragraph (c)(1) states that if a standard “is

specifically applicable” to a condition, it “shall prevail” over any different general

standard “which might otherwise be applicable.” (Emphasis added.) Paragraph (c)(2)

likewise states that “any standard shall apply according to its terms...to the extent that

none of such particular standards applies.” (Emphasis added.) Nothing in § 1910.5(c)(2)

permits OSHA to apply an inapplicable general industry standard—i.e., one that was

never intended to apply in the first place—to construction. Indeed, OSHA agreed that

one would not ask whether one standard preempts another if one of them “is not even

applicable in the first place.” Bolon Tr. 38. And § 1910.5(c) obviously says nothing about

whether a standard is applicable in the first place. Only if understood this way would

§ 1910.5(c) would yield a correct answer when applied to, e.g., § 1910.1030.

Yet, OSHA never conducted the first step of the two‐step inquiry that § 1910.5(c)

requires—determine that a Part 1910 standard is applicable to construction and, if so,

only then determine whether there is a more applicable Part 1926 standard. Again,

OSHA’s good cause finding was not “based on a consideration of the relevant factors”

and “entirely failed to consider an important aspect of the problem.” State Farm,

463 U.S. at 43.

OSHA argued before Judge Simko that Commission precedent about § 1910.5(c)

addresses the issues raised here. It cited Brown & Root Inc., 9 OSHC 1833, 1839 (No. 76‐

190, 1981), and (in other papers, West. Waterproofing, Inc., 7 BNA OSHC 1499, 1501

(No. 14523, 1979)), both of which state that § 1910.5(c) “governs the application of

39
general industry standards to construction work....” Neither is apposite, for neither

employer argued and neither opinion discussed whether a Part 1910 standard may be

applied where, as here, the employer objects that it was not intended to apply to

construction or could not validly be applied to such work. In Western Waterproofing, the

employer claimed that two uncited Part 1926 standards preempted a cited Part 1910

standard. It did not claim that the Part 1910 standard was inapplicable in the first place

but only that it was preempted. In response, the Commission applied § 1910.5(c), stating

that it “governs the application of general industry standards to construction work....”

Much the same is true of Brown & Root. Thus, neither case concerned whether a Part

1910 standard can be applied to construction if it was not intended to so apply ab initio.

Instead, the employers assumed that the cited Part 1910 standards applied to

construction, and discussed only preemption. Cases are not precedent on points that

they did not consider.20  

3. The Public Was Entitled To Comment on Whether § 1910.151(c) Was

“Appropriate” To Apply to Construction. The “Good Cause” Exception Did

Not Permit OSHA to Make Substantive Judgments Without Public

Participation.

One of the most egregious aspects of OSHA’s 1993 verticalization was that it rested

on OSHA’s private judgments as to the “appropriateness” of the application of Part

1910 standards to construction.  

The “unnecessary” prong of the “good cause” exception applies when amendments

are “minor or merely technical,” and of little public interest. Nat’l Nutri. Foods Ass’n v.

Kennedy, 572 F.2d 377, 384‐85 (2d Cir. 1978) (per Friendly, J.) (quoting S. REP. NO. 752, at

                                                                    

20 Cagle’s Inc., 21 BNA OSHC 1738, 1744 (No. 98‐0485, 2006) (previous cases did not

consider issue); Northwest Airlines, Inc., 8 BNA OSHC 1982, 1988 (No. 13649, 1980)

(same); see generally Brecht v. Abrahamson, 507 U.S. 619, 630‐31 (1993) (question must be

“squarely addressed”); Underhill Constr. Corp. v. OSHRC, 526 F.2d 53, 54 n.3 (2d Cir.

1975) (issue neither briefed nor argued in prior decision).

40
200). It is “confined to those situations in which the administrative rule is a routine

determination, insignificant in nature and impact, and inconsequential to the industry

and to the public.” Util. Solid Waste Activs. Grp. v. v. EPA, 236 F.3d 749, 755 (D.C. Cir.

2001) (invalidating not “inconsequential” EPA amendment, public would be “greatly

interested”); Nat’l Family Plan. & Reprod. Health Ass’n v. Sullivan, 979 F.2d 227, 241 (D.C.

Cir. 1992) (HHS directive invalid; rulemaking would “force important issues into full

public display”); J. LUBBERS, A GUIDE TO FED. AGENCY RULEMAKING 107 (4th ed. 2006)

(“minor technical amendments that involve little exercise of agency discretion.”).

None of that can be said here. That this was not a “purely ministerial action” (OSHA

PDR at 7) or “routine determination, insignificant in nature and impact, and

inconsequential to the industry and to the public,” is shown by the following:

 OSHA claimed that in 1993 it made findings of feasibility and significant risk.

Sec’y’s Supp. Responses to KPCC’s First Set of Req. for Admissions at 3 (filed June 26,

2012) (asserting that OSHA in 1993 found that § 1926.50(g) “is feasible as applied to

construction work,” “is reasonably necessary or appropriate as applied to construction

work,” and “addresses a significant risk of harm in construction work”); Bolon Tr. 57

(“implicit” feasibility findings made in 1993).  

 OSHA did not just apply all WHA‐derived standards to construction. It took the

extra step of determining whether their application to construction was “appropriate.”

OSHA picked and chose those WHA‐derived standards and other § 6(a) standards that

it thought should be applied to construction. Moreover, it stated that it would add other

Part 1910 standards to Part 1926 if “enforcement experience” “indicate[s]” that they too

are “applicable to construction.” 58 Fed. Reg. at 35077.

 Whether a standard should be applied to construction is often an intensely

debated question in OSHA rulemakings. E.g., 57 Fed. Reg. 42102 (1992) (separate

cadmium standard for construction developed because “differences in job duration,

exposure and worksite conditions warrant unique treatment”); 43 Fed. Reg. 52986

41
(1978) (explaining exclusion of construction from lead standard); Bolon Tr. 36‐37

(construction and non‐construction standards may address the same hazard differently

because of “feasibility” concerns, or “require different solutions” or “present a

significant risk in one setting but not in the other”).

 OSHA consulted with ACCSH, a body that is required to be consulted only

about substantive changes to a construction standard (Nat’l Constructors Ass’n v.

Marshall, 581 F.2d 960, 971 (D.C. Cir. 1978)), and which for this task formed a special

subcommittee to determine which Part 1910 standards should be placed in Part 1926.  

 The ACCSH subcommittee’s debates were often intense. E.g., Tr. 165 (June 14,

1978) (RR:41) (regarding § 1910.212(a)(4)); Tr. 81‐89 (Jan. 10, 1974) (RR:31) (§ 1910.151(c),

including Tr. 83 (“This is going to be a difficult one, gentlemen.”) and Tr. 88‐89 (vote to

“flag” § 1910.151(c) for “special discussion” by the full committee.)

 The subcommittee frequently voted to delete or alter words in the standards.

E.g., Tr. 88‐89 (voting to delete the word “suitable” from § 1910.151(c)).

 OSHA admitted that “ACCSH did not have to automatically recommend

verticalization just because it did not see a preempting Part 1926 standard”; that

ACCSH “could have recommended for exclusion from verticalization a Part 1910

standard that it thought wasn’t feasible in construction work”; and that ACCSH “could

have recommended for exclusion from the verticalization a standard they thought

wasn’t a good fit with construction work.” Bolon Tr. 78‐81.

 The subcommittee revolted against the entire effort because the Part 1910

standards need to be adapted, not adopted verbatim. See p. 12.

 Even after the ACCSH committee process ran its course, OSHA still professed

uncertainty as to whether the chosen standards were suitable for application to

construction: “every effort has been made to identify those... standards which are most

likely to be applicable to construction work.” 58 Fed. Reg. at 35077 (emphasis added).

42
 Verticalized standards were given a different status than unverticalized ones,

which could not be cited in construction except through a “special procedure ...

established by the National Office.” 58 Fed. Reg. at 35077.  

The purpose of notice‐and‐comment rulemaking is to counter the institutional bias

engendered by the inbred process followed here. See Choc. Mfrs. Ass’n v. Block, 755 F.2d

1098, 1103 (4th Cir. 1985) (notice‐and‐comment helps “the agency maintain[] a flexible

and open‐minded attitude towards its own rules.”); see generally Chamber of Commerce v.

OSHA, 636 F.2d 464, 470‐71 (D.C. Cir. 1980). Consultation with an advisory committee is

no substitute for notice‐and‐comment rulemaking. See Sugar Cane Growers Coop. v.

Veneman, 289 F.3d 89, 96‐97 (D.C. Cir. 2002) (consulting selected members of affected

public insufficient; rule invalid).  

The public was thus entitled to comment on the correctness of the ACCSH

subcommittee’s and OSHA’s view as to the appropriateness, feasibility and wisdom of

applying the WHA standards to construction. The public could have observed that the

WHA standards were expressly written only for “certain particular working conditions”

(§ 50‐204.1(a); § 1926.15(b)), i.e., manufacturing. It could have observed that the

Department had already concluded (p. 7), in a CSA notice‐and‐comment rulemaking,

that the WHA ancestor of § 1910.151(c) should not be applied to construction. The public

could have observed that the WHA standards “identified” as “applicable” to

construction were, as a matter of law, not applicable. The public could have pointed out

that the Department’s own regulation (§ 1926.15(b)) stated that the WHA standards did

not apply to construction. And the public could have observed that issuing citations

citing a Part 1910 standard—no matter for how long—is not a proper basis for copying a

standard into Part 1926.

This last point bears emphasis. One of OSHA’s main criteria for selecting Part 1910

standards for verticalization was that its inspectors had a history of citing them in

construction. See p. 14 above (“been applied to construction employment” meant

43
applied “by OSHA”). That OSHA inspectors had issued citations to construction

employers, or that OSHA officials had concluded that they could, is not good cause for

concluding that the cited standards applied or should be applied to construction. It is

not even weak cause. It is no cause. If it were good cause, then OSHA could summarily,

without public participation, write into law interpretations of standards merely because

they have been reflected in citations. That is a recipe for lawlessness. OSHA failed to

satisfy the “unnecessary” prong for good cause.

OSHA also failed to satisfy the “impracticable” prong. ““Impracticable” means a

situation in which the due and required execution of the agency functions would be

unavoidably prevented by its undertaking public rule‐making proceedings.” S.DOC.

NO. 248, 79TH CONG., at 200 (1946). An example is an imminent threat. Mack Trucks,

682 F.3d at 93. Inasmuch as the verticalization effort was going on for decades, that

could not be plausibly said here. If ACCSH could be consulted, so could the public.

In addition, Judge Simko’s rejection of OSHA’s assertion that the verticalization

changed nothing was wise and insightful. First, the Judge’s practical observation (JD 9)

that the placement of a WHA‐derived standard into Part 1926 makes “feasibility of

compliance more difficult...to challenge” is unassailable. Such placement lends added

credence to the supposition that the standard is feasible as applied to construction or

addresses a significant risk of harm there, and thus, as a practical matter, increases the

evidentiary burden on employers to prove infeasibility, de minimis, or invalidity as

applied and, if relevant under a particular standard (e.g., § 1926.95(a)), to disprove

“hazard.” The public should have been permitted to comment on the fairness of this.

The public might have suggested that an interpretive regulation be placed in Part 1926

stating that certain asterisked provisions do not imply or carry a presumption that they

are feasible as applied to construction or that they address a significant risk there.

Second, as the Judge observed (JD 8, 9), a Part 1910 standard “may or may not be

applicable” to construction. E.g., the Bloodborne Pathogens Standard and the Part 1910,

44
Subpart S electrical standards do not apply to construction even though their scope

provisions do not say so. See p.36. It is OSHA’s burden to prove that Part 1910

standards apply to construction and, depending on their rulemaking history, it may be

unable to do so. As Judge Simko noted, however, placing a Part 1910 standard into Part

1926 raises “a presumption of applicability to construction work that otherwise does not

exist....” Employers and judges alike would thus be misled into supposing that an

erroneously verticalized standard applies to construction, and into not challenging

whether OSHA had met its burden of proving applicability or challenging whether the

standard is valid as so applied. The public should have been permitted to comment on

this. It might have suggested that an interpretive regulation state that certain asterisked

provisions in Part 1926 might not validly apply to construction.

Third, Judge Simko was correct that the verticalization shifted to the employer the

burden of proving infeasibility or greater hazard plus alternative measures. OSHA’s

attempt (PDR at 7) to refute this rests on an irrelevant case—a verticalized Part 1910

standard applicable to construction. If the Part 1910 standard (such as § 1910.1030) were

inapplicable to construction, Judge Simko’s observations would apply with full force: If

OSHA were unable to show applicability to construction, it would have to instead cite

§ 5(a)(1) and bear the burden of proving feasibility and usefulness (negation of greater

hazard). Ed Cheff Logging, 9 BNA OSHC 1883, 1890 (No. 77‐2778, 1981).

Inasmuch as OSHA lacked good cause, § 1926.50(g) is invalid.

4. In 1993, OSHA Had No Authority to Dispense With Notice‐And‐Comment

Rulemaking Or Rulemaking Findings.

Even if good cause within the meaning of the APA was established for the 1993

verticalization, it nevertheless was insufficient under OSH Act § 6(b). OSHA

acknowledged that, ordinarily, it would have been required to follow APA and § 6(b)

procedures for the verticalizations. See 58 Fed. Reg. at 35077 col. 1. (It could not have

acted under § 6(a) for that authority had expired long before.) The APA’s good cause

45
dispensation applies “[e]xcept when notice or hearing is required by statute.” APA

§ 553(b) (emphasis added). OSH Act § 6(b) expressly requires notice and, upon request,

a hearing, when promulgating a standard. Thus, the APA dispensation does not apply.

See Mack Trucks, Inc. v. EPA, 682 F.3d 87, 91‐92 (D.C. Cir. 2012) (“[rulemaking] language

[in organic statute, akin to § 6(b)(1)‐(3)] seems to support...argument”; rejecting

argument because of other provision without OSH Act analogue). And because the

OSH Act provides no good‐cause exception to § 6(b)’s rulemaking requirements, OSHA

had no right (§ 1911.5 notwithstanding) to not follow them. Nor can OSHA argue that

the APA limits the rulemaking requirements in the OSH Act, for APA § 559 states that

the APA “do[es] not limit or repeal additional requirements imposed by statute or

otherwise recognized by law.”

B. Item 1 Must Alternatively Be Vacated Because OSHA Did Not Produce Evidence

Showing That It Could Satisfy Its Burden of Proof.

The Commission could alternatively21 vacate Item 1 because, contrary to

FED.R.CIV.P. 56(e), OSHA failed to produce evidence showing it could satisfy its burden

of proof. That rule requires the party with the burden of proof to show that it has

evidence on necessary elements of its case. “Rule 56(e)...requires the nonmoving party to

go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to

interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a

genuine issue for trial.’” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (emphasis

added). “Rule 56(c) mandates the entry of summary judgment against a party who fails

to make a showing sufficient to establish the existence of an element essential to that

party’s case.” Id. at 323 (emphasis added).

                                                                    

21 Reich v. Simpson, Gumpertz & Heger, Inc., 3 F.3d 1, 4 (1st Cir. 1993) (affirming on

grounds different than those below, citing authorities); All Erec. & Crane Rental Corp. v.

OSHRC, 2012 WL 6028627 (6th Cir. 2012) (unpublished) (“Although the ALJ did not

reach this element of the ...defense, we could affirm on this ground.”).

46
OSHA completely failed to present evidence on several crucial points, each of which

are sufficient to vacate. OSHA’s only evidence that the Part B mixture, and thus the

Parts A‐B mixture, were “corrosive” were MSDS and label statements required by

§ 1910.1200 (“HazCom Standard”) of mixtures defined as “corrosives.” But the HazCom

Standard then defined Part B as a “corrosive,” and required such “corrosive” warnings

and statements, if as little as one percent of the mixture consists of a “corrosive”

(§ 1910.1200(d)(5)(ii) and (g)(2)(C)(i) (2011)) and, as to the Parts A‐B mixture, if as little

as 0.5 percent of a mixture consists of a “corrosive.” Such warnings and statements do

not mean that a mixture is a “corrosive,” let alone an “injurious corrosive,” within the

meaning of § 1926.50(g). 48 Fed. Reg. 53280, 53296, 53292 col. 3 (1983) (requirements

reflect “possible hazards,” not significant risk; whether actually hazardous is “not

known” unless mixture tested as a whole).22 OSHA so admitted in its Rule 30(b)(6)

deposition. Sotak Tr. 70‐71 (hazard and risk “two different things”; chemical might pose

hazard but not risk); id. at 71‐72 (MSDS must state hazard even if no significant risk

prevent); see also id. at 74‐75. And in the recent Globally Harmonized System (GHS)

amendments to the standard, OSHA agreed explicitly. 77 Fed. Reg. 17574, 17711 (2012)

(pre‐amendment standard required mixtures with 1% toxic material be considered

acutely toxic even if “no effect is expected to result”). OSHA also admitted that it has no

evidence as to the strength (acidity/basicity) of the alleged “corrosive” and admitted

that, rather than a “corrosive,” it could actually be an “irritant.” Sotak Tr. 31, 41‐42, 44‐

45. And § 1910.1200 is silent on whether something is “injurious.”

                                                                    

22 OSHA’S GUIDANCE FOR HAZARD DETERMINATION FOR COMPLIANCE WITH THE OSHA

HAZARD COMMUNICATION STANDARD (29 CFR 1910.1200), available at

www.osha.gov/dsg/hazcom/ghd053107.html (“Hazard determination does not involve

an estimation of risk.”).

47
48

OSHA also admitted that it has no evidence that the distance to the nearest flushing

facility was too far on the facts (Sotak Tr. 80‐81) (“Q. So how far is too far in the facts of

this case? A. I don’t know.”); admitted that it has no evidence on how far the cited

operation was from the closest water hose (Tr. 76); it produced no evidence refuting

KPCC’s showing (Hinz Decl. ¶ 19; Perry Decl. ¶ 15 (the allegedly affected employee))

that water hoses and other water sources were “common throughout the construction

site, usually as close together as every twenty feet”; and it produced no evidence

refuting KPCC’s showing that an employee could without difficulty walk to a hose in a

few seconds (Perry Decl. ¶ 15). Appendix A, § 1910.1200 (2011), defines a “corrosive” as

a substance that causes damage after an exposure of “four hours.” See Con Agra Flour

Mill. Co., 16 BNA OSHC 1137, 1142 (No. 88‐1250, 1993) (standard requires flushing

facilities available “before [employees] suffer injury”); Atl. Battery Co., 16 BNA OSHC

2131, 2167‐2168 (No. 90‐1747, 1994) (whether distance is excessive depends on, inter alia,

“strength and amounts of the corrosive material...; ...the distance between the area

where the corrosive chemicals are used and the washing facilities”). Inasmuch as OSHA

failed to present evidence on these elements, the item should be vacated on this ground.

V. Conclusion

The order of Judge Simko vacating Item 1 of Citation 1 should be affirmed, and a

declaratory order issued declaring that paragraph (g) of 29 C.F.R. § 1926.50 is invalid.

Respectfully submitted,

/s/

Arthur G. Sapper, Esq.

James A. Lastowka, Esq.

McDERMOTT WILL & EMERY LLP

Attorneys for Respondent, Kiewit Power

Constructors Co.
Certificate of Service

I HEREBY CERTIFY that on this 14th day of May 2013—

 I caused to be sent a copy of the foregoing (labeled “11‐2395 Respondent’s

Opening Brief.pdf”) by, as ordered by the Commission, electronic mail to

Glabman.Scott@dol.gov; and

 I caused, in accordance with the Commission’s briefing order and its

instructions for implementing § 2200.8(g), to be sent by Federal Express to

the following physical address a CD‐ROM containing the appendix to the

brief:

Scott Glabman, Esq., Senior Appellate Attorney

Room S‐4004

Office of the Solicitor

U.S. Department of Labor

200 Constitution Avenue, N.W.

Washington, D.C. 20036‐3419

/s/

      Arthur G. Sapper, Esq.

      McDermott Will & Emery LLP

49
l

Addendum Table of Contents

Addendum A:  Rulemaking History of 41 C.F.R. § 50‐204.6(c), 29 C.F.R.

§ 1910.151(c), and 29 C.F.R. § 1926.50(g) ......................................................................A‐1

Addendum B:  Index to Rulemaking Record.......................................................................B‐1

Addendum C: Table of Contents of Appendix (on CD‐ROM) ........................................ C‐1
Addendum A: Rulemaking History of  

41 C.F.R. § 50‐204.6(c), 29 C.F.R. § 1910.151(c), and 29 C.F.R. § 1926.50(g)

Statute Standard Event Coverage Citation

Notice‐and‐

Comment

Rulemaking?

Proposal (as § 50‐

204.63(c))

33 Fed. Reg.

14258, 14270

(1968)

Federal

contracts for

“manufacture

or furnishing

of materials,

supplies,

articles, and

equipment”

Walsh‐

Healey

Act

41 C.F.R.

§ 50‐204.6(c) 34 Fed. Reg.

788, 789‐90

(1969); 34 Fed.

Reg. 7947 (1969)

Final Rule

Yes

Proposal: no

version of

41 C.F.R. § 50‐

204.6(c) proposed

for application to

construction  

36 Fed. Reg.

1802 (Feb. 2,

1971) Federal

contracts for

construction

Constr.

Safety

Act

None

Final Rule: no

version of

41 C.F.R. § 50‐

204.6(c) applied

to construction  

36 Fed. Reg.

7340 (April 17,

1971)

Yes

29 C.F.R.

§ 1910.151(c)

Final Rule:

41 C.F.R. § 50‐

204.6(c) adopted

as 29 C.F.R.

§ 1910.151(c)

§ 1910.5(e)

(revoked

9/9/71):

“plants,

factories,

[etc.]... where

materials ...

or equipment

are

manufactured

or furnished”

36 Fed. Reg.

10466, 10601 col.

2 (1971);

36 Fed. Reg.

18080 (1971)

(revoking

§ 1910.5(e)).

No; adopted

under OSH

Act § 6(a).

OSH Act

29 C.F.R.

§ 1926.50(g)

Final Rule:

§ 1910.151(c)

applied to

construction  

Construction

58 Fed. Reg.

35076, 35084

col. 1 (1993)

No

A‐1
Addendum B: Index to Rulemaking Record

RR No. Original File Name Corrected File Name

1 19360600 49Stat 2036‐Chapter 881‐ an act.pdf

2 19400000 Title 41USC‐secs 35HnS‐38Regs.pdf

3 v3Titles3450[1].pdf 19400000 Title 41 U.S.C. § ‐

secs 35HnS‐38Regs.pdf

4 19420500 56Stat277‐Chapter 306 amend Title 41‐sec35‐

subsec(c).pdf

5 19630809 28FedReg8208‐50‐204‐Radiation.pdf

6 19631001 28FedReg10524‐50‐204 proposed revisions‐

1thru300.pdf

7 19640000 Title 41Walsh‐Healey short name sec 35 37

USC.pdf

8 19640129 29FedReg1437‐50‐204‐radiation.pdf

9 19640131 29FedReg1620‐50‐204‐306‐radiation.pdf

10 19650416 30FedReg5483‐radiation.pdf

11 19680920 33FedReg14258 propsdrule 50‐204

pubcmnt.pdf

12 19690000 41CFRChapter50‐204‐subsec264‐269‐270 eye

first aid.pdf

13 19690117 34FedReg788 Chapter50‐204‐subsec6c

revzd.pdf

14 19690423 34FedReg6779‐Chapter50‐204‐subsec36

radiation‐mining.pdf

15 19690520 34FedReg7948‐Chapter50‐204‐subsec6c.pdf

16 19700000 41CFR50‐204‐6c.pdf

17 19700124 35FedReg1005‐Chapter50‐204‐subsec6a

B‐1
l

RR No. Original File Name Corrected File Name

revzd.pdf

18 19710202 36FedReg[II] prpsd 1518.pdf

19 19710222‐23 OSHA‐ACCSH1971‐1‐2006‐0067‐

0002[1].pdf

20 19710417 36FedReg[II]‐final rules 1518.pdf

21 19710814 36FedReg5[1] delayd effect date for

residential mods.pdf

22 19710923 ACCSH stndrds discussion.pdf

23 19710923 OSHA‐ACCSH1971‐3‐2006‐0069‐0001[1].pdf

24 19710928 36FedReg5[1]‐1518prpsd rules.pdf

25 19711215 OSHA‐ACCSH1971‐5‐2006‐0071‐0001[1].pdf

26 19720000 29CFR1910SubK‐151c.pdf

27 19731203 OSHA‐ACCSH1973‐4‐2006‐0088‐0001[1].pdf

28 19731204 OSHA‐ACCSH1973‐4‐2006‐0088‐0002[1].pdf

29 19731204 OSHA‐ACCSH1973‐4‐2006‐0088‐0002[2].pdf

30 19740103 39FedReg771[1] see 861ACCSH‐notice.pdf

31 19740110 OSHA‐ACCSH1974‐1‐2006‐0089‐0002[1].pdf

32 19740111 OSHA‐ACCSH1974‐1‐2006‐0089‐0003[1].pdf

33 19740124 OSHA‐ACCSH1974‐1‐2006‐0089‐0004[1].pdf

34 19740627 39FedReg23502 repub 1910‐source of

151c.pdf

35 19750000 29CFR1910SubK‐151c.pdf

36 19750000 41CFR50‐204‐6c.pdf

37 19780530 OSHA‐ACCSH1978‐1‐2006‐0110‐0001[1].pdf

B‐2
l

B‐3

RR No. Original File Name Corrected File Name

38 19780530 OSHA‐ACCSH1978‐1‐2006‐0114‐0001[1].pdf

39 19780613 OSHA‐ACCSH1978‐1‐2006‐0110‐0002[1].pdf

40 19780613 OSHA‐ACCSH1978‐1‐2006‐0114‐0002[1].pdf

41 19780614 OSHA‐ACCSH1978‐1‐2006‐0110‐0003[1].pdf

42 19780614 OSHA‐ACCSH1978‐1‐2006‐0114‐0003[1].pdf

43 06_14_78 Hearing Transcript.pdf 19780614 Hearing

Transcript.pdf

44 19790209 44 FR 8577 1910 applicable to 1926.pdf

45 19790406 44FedReg20940.pdf

46 19790406 44FedReg20940 corrections to 9Feb79

notice.pdf

47 19920519 OSHA‐ACCSH1992‐1‐2006‐0158‐0002[1] 1910

to 1926 presentation.pdf

48 19930129 OSHA‐ACCSH1993‐1‐2006‐0161‐0003.pdf

49 19930216 OSHA‐ACCSH1993‐1‐2006‐0161‐0009.pdf

50 19930630 58 FR 35160 1910 applcble to‐renumbered in

1926.pdf
l

Addendum C: Table of Contents of Appendix (on CD‐ROM)

Index to Rulemaking Record (Addendum B)

Rulemaking Record (RR:)

Transcripts of ACCSH Meetings: Jan. 24, 1974, Tr. 105‐09; Jan. 10, 1974, Tr. 15, 44, 81‐89,

113; June 14, 1978, Tr. 165.

Labor Department Compilation of Sources of Part 1926 (April 17, 1971), excerpts, with

authenticating letters; compilation in full

1974 BNA OSHR CURRENT REPORT 1201

36 Fed. Reg. 10466 (1971), adoption of 29 C.F.R. Part 1910, incl. § 1910.5 and 1910.151

36 Fed. Reg. 18080 (Sept. 9, 1971) (revoking § 1910.5(e))

“Identification of General Industry Standards Applicable to Construction Work,”

44 Fed. Reg. 8577, 8589 col. 1 (1979)

55 Fed. Reg. 31984‐86, 32007 (1990) (adopting Part 1910 electrical standards)

“Incorporation of General Industry Standards Applicable to Construction Work,”

58 Fed. Reg. 35076, 35084 col.1 (1993); and “Appendix A to Part 1926, Designations for

General Industry Standards Incorporated Into Body of Construction Standards,” id. at

35305 col. 2

61 Fed. Reg. 41738 (1996) (revoking §§ 1926.416(a)(4), (f) and (g), and § 1926.417(d))

Letter from G. Reidy (OSHA) to G. Kennedy (Nat’l Utility Contractors Ass’n) (1990),

available at

http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_

id=20081

Letter from Sec’y of Labor L. Martin to R. Georgine, “Construction Activities and

Operations and the Bloodborne Pathogens Standard” (1992), available at

http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_

id=20968

Excerpt from transcript of ACCSH Meeting, at p.32 (Feb. 16, 1993) (OSHA‐ACCSH1993‐

1‐2006‐0161‐0009), with authenticating letters

Sec’y Br. at 43‐44 (filed July 30, 2007), in Solis v. Summit Contracts., Inc., 558 F.3d 815 (8th

C‐1
l

C‐2

Cir. 2009), available at http://www.dol.gov/sol/media/briefs/summit‐07‐30‐2007.htm

LABOR DEPARTMENT, EMPLOYMENT LAW GUIDE: FEDERAL CONTRACTS‐WORKING

CONDITIONS: WAGES IN SUPPLY & EQUIPMENT CONTRACTS; WALSH‐HEALEY PUBLIC

CONTRACTS ACT (PCA); WHO IS COVERED, available at

www.dol.gov/compliance/guide/walshh.htm

OSHA, GUIDANCE FOR HAZARD DETERMINATION FOR COMPLIANCE WITH THE OSHA

HAZARD COMMUNICATION STANDARD (29 CFR 1910.1200), available at

www.osha.gov/dsg/hazcom/ghd053107.html

Deposition of the Secretary of Labor under Rule 30(b)(6) (through P. Bolon) (validity)

Deposition of the Secretary of Labor under Rule 30(b)(6) (through M. Sotak) (violation)