No. 11-2395 

 

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

__________________________________________________ 

 

SETH D. HARRIS, 

ACTING SECRETARY OF LABOR, 

Complainant, 

v. 

KIEWIT POWER CONSTRUCTORS CO.,

Respondent. 

___________________________________________________ 

REPLY BRIEF FOR THE ACTING SECRETARY OF LABOR 

___________________________________________________ 

 M. PATRICIA SMITH 

 Solicitor of Labor 

 JOSEPH M. WOODWARD 

 Associate Solicitor of Labor for 

 Occupational Safety and Health 

 CHARLES F. JAMES 

 Counsel for Appellate Litigation 

 SCOTT GLABMAN 

 Senior Appellate Attorney 

 U.S. Department of Labor 

 200 Constitution Ave., N.W. 

 Washington, D.C. 20210 

 (202) 693-5493 

 

JUNE 24, 2013 
i 

TABLE OF CONTENTS 

TABLE OF CONTENTS ................................................................................................................ i 

TABLE OF AUTHORITIES ........................................................................................................ iii 

ARGUMENT 

I. The Secretary Reasonably Interpreted Section 6(a) of the OSH Act as 

Authorizing Extension of Coverage of the Walsh-Healey Act “Quick 

Drenching” Standard to Construction Employers Without Notice-andComment Rule-Making ......................................................................................... 1 

II. The Secretary’s Codification of the Construction “Quick Drenching” 

Provision, 29 C.F.R. § 1926.50(g), Was Not a Substantive Change 

Requiring Notice-and-Comment Rule-Making ..................................................... 7 

 III. Kiewit’s Merits Arguments Are Not Properly before the Commission ................. 9 

 IV. If the Commission Should Find § 1926.50(g) Invalid, Declaratory 

 Relief Would Be Superfluous and Should Be Denied............................................ 13 

CONCLUSION ............................................................................................................................. 15 

CERTIFICATE OF SERVICE 
ii 

TABLE OF AUTHORITIES 

CASES: Page 

A.J. McNulty & Co., 

19 BNA OSHC 1121 n.1 (No. 94-1758, 2000) ................................................................ 10 

Alabama Power Co. v. Gorsuch, 

672 F.2d 1 (D.C. Cir. 1982) .............................................................................................. 13 

Altor Inc., 

23 BNA OSHC 1458 (No. 99-0958, 2011) ...................................................................... 13 

*Am. Can Co., 

 10 BNA OSHC 1305 (No. 76-5162, 1982) ....................................................................... 6 

Ark Las Vegas Restaurant Corp. v. NLRB, 

334 F.3d 99 n.4 (D.C. Cir. 2003) ...................................................................................... 13 

*Bechtel Power Corp., 

4 BNA OSHC 1005 (No. 5064, 1976), aff'd, 548 F.2d 248 

 (8th Cir. 1977) ................................................................................................................ 3, 6 

*Brown & Root, Inc., 

 9 BNA OSHC 1407 (No. 77-805, 1981)............................................................................ 6 

Celotex Corp. v. Catrett, 

477 U.S. 317 (1986) .......................................................................................................... 10 

*Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 

467 U.S. 837 (1984) .................................................................................................... 2, 3, 4 

*City of Arlington, Texas v. FCC, 

133 S. Ct. 1863 (2013) ....................................................................................................... 2 

Conagra Flour Milling Co., 

16 BNA OSHC 1137 (No. 88-1250, 1993) ...................................................................... 12 

Coughlan Constr. Co., 

 3 OSHC 1636 (Nos. 5303, 5304, 1975) ............................................................................ 6 

*Diebold, Inc. v. Marshall, 

 585 F.2d 1327 (6th Cir. 1976) ............................................................................................ 6 

Authorities on which we chiefly rely are marked by an asterisk. 
iii 

Granite City Terminals Corp., 

12 BNA OSHC 1741 (No. 83-882-S, 1986) ..................................................................... 14 

J.A. Jones Constr. Co., 

15 BNA OSHC 2201 (No. 87-2059, 1993) ...................................................................... 10 

Kemlon Prods. & Dev. Co. v. United States, 

646 F.2d 223 (5th Cir. 1981) ............................................................................................ 13 

*Lee Way Motor Freight, Inc., 

 1 BNA OSHC 1689 (No. 1105, 1974), aff’d, 511 F.2d 864 (10th Cir. 1975) .................... 6 

Lee Way Motor Freight, Inc. v. Secretary, 

 511 F.2d 864 (10th Cir. 1975) ........................................................................................... 6 

Madison Underground Inc., 

16 BNA OSHC 1297 (No. 90-3249, 1993) ...................................................................... 14 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

 475 U.S. 574 (1986) .................................................................................................... 10, 11 

Salazar v. Washington Metro. Transit Auth., 

401 F.3d 504 (D.C. Cir. 2005) .......................................................................................... 13 

Tampa Shipyards, Inc., 

15 BNA OSHC 1533 (Nos. 86-360, 86-469, 1992) .......................................................... 10 

STATUTES AND REGULATIONS: 

 Administrative Procedure Act, 

 5 U.S.C. § 553 ..................................................................................................... 7, 8 

 5 U.S.C. § 553(b)(B) ....................................................................................... 7, 8, 9 

 5 U.S.C. § 553(d) ................................................................................................... 8 

 5 U.S.C. § 557(b) .................................................................................................. 10 

 5 U.S.C. § 559 ................................................................................................. 2, 6, 7 

 

 
iv 

Walsh-Healey Act Standards, 

 41 C.F.R. § 50-204.6(c) ................................................................................... 1, 6-7 

 Occupational Safety and Health ("OSH") Act, 

 § 4(b)(2), 29 U.S.C. § 653(b)(2) ................................................................. 3, 4, 5, 6 

 § 6(a), 29 U.S.C. § 655(a) .............................................................................. passim 

 § 6(b), 29 U.S.C. § 655(b) .................................................................................. 7, 8 

 OSH Act Regulations and Standards, 

 29 C.F.R. § 1910.11 ............................................................................................... 3 

 29 C.F.R. § 1910.11(a)........................................................................................ 3, 7 

 29 C.F.R. § 1910.151(c)............................................................................ 3, 7, 9, 12 

 29 C.F.R. § 1910.5(c)(2) ........................................................................................ 3 

 29 C.F.R. § 1910.5(e)............................................................................................. 5 

 29 C.F.R. Part 1926................................................................................................ 9 

 29 C.F.R. § 1926.50(g) .................................................................................. passim

MISCELLANEOUS: 

 Fed. R. Civ. P. 56(a) ......................................................................................................... 11 

Federal Register, 

 36 Fed. Reg. 18,080 (1971) ................................................................................... 5 

 36 Fed. Reg. 18,080-81 .......................................................................................... 5 

 58 Fed. Reg. 35,076 (1993) ................................................................................ 8, 9 

 58 Fed. Reg. 35,077 ............................................................................................ 8, 9 
v 

 58 Fed. Reg. 35,084 ............................................................................................... 9 

 58 Fed. Reg. 35,305 ................................................................................................ 9 

 116 Cong. Rec. at 37,345, Legislative History of the OSH Act of 1970 at 444 ................. 5 

 S. Rep. No. 91-1282, at 6 (1970), Legislative History at 141, 146 .................................. 5 
 1 

I. The Secretary Reasonably Interpreted Section 6(a) of the OSH Act as Authorizing 

 Extension of Coverage of the Walsh-Healey Act “Quick Drenching” Standard to 

 Construction Employers Without Notice-and-Comment Rule-Making. 

 In his opening brief, the Acting Secretary demonstrated that Section 6(a) of the OSH Act 

expressly exempted the Secretary from the Administrative Procedure Act (“APA”) notice-andcomment rule-making requirements in ordering him to adopt established federal standards “as 

soon as practicable” within two years of the effective date of the Act. Acting Sec. Op. Br. at 2. 

The Acting Secretary also showed that the legislative history of section 6(a) records that the 

purpose of adopting these established standards without notice-and-comment rule-making was to 

extend immediate expanded protection under the OSH Act to the many workers who were not 

covered by the source standards. Id. at 4-5. The Acting Secretary further established that both 

the courts of appeals and the Commission have long held that, in adopting established federal 

standards as OSH Act standards, the Secretary was not required to adopt the source standards’ 

scope and application limits, but could expand them summarily to obey the statutory mandate to 

cover workers who were not covered by the source standards. Id. at 12-14. Thus, the Acting 

Secretary proved that section 6(a) permitted the Secretary’s summary extension of the WalshHealey Act quick drenching standard from manufacturing employees to construction employees. 

 Respondent Kiewit Power Constructors, Inc. and its aspiring amicus curiae APA Watch 

argue that the construction standard “quick drenching” provision, 29 C.F.R. § 1926.50(g), which 

is identical to its Walsh-Healey Act and OSH Act general industry predecessors, 41 C.F.R. § 50-

204.6(c) and 29 C.F.R. § 1910.151(c), is invalid because it was not promulgated in accordance 

with APA notice-and-comment rule-making requirements. Kiewit Op. Br. at 2, 15-46; APA 

Watch Br. at 4-17. Kiewit and APA Watch are mistaken. APA notice-and-comment rulemaking requirements are inapplicable here because section 6(a) of the OSH Act expressly 
2 

exempted the Secretary from them in ordering him to promulgate established federal standards as 

occupational safety and health standards, “as soon as practicable” and “[w]ithout regard to 

chapter 5 of title 5, United States Code [the APA notice-and-comment rule-making 

requirements], or to the other subsections of this section [the OSH Act notice-and-comment rulemaking requirements].1

 Consequently, contrary to Kiewit’s and APA Watch’s assertions, the 

first issue that the Commission asked the parties to brief, whether section 6(a) of the OSH Act 

permitted the Secretary to extend the coverage of the Walsh-Healey Act quick drenching 

standard to construction employers, Comm’n Briefing Notice at 1, has nothing to do with the 

APA.2

 Instead, the issue concerns the proper construction of the OSH Act, in particular of the 

scope of the Secretary’s authority under section 6(a). 

 The Supreme Court has recently clarified that Chevron deference applies to an agency’s 

construction of a jurisdictional provision of a statute it administers, i.e., to the agency’s 

interpretation of the scope of its statutory authority. City of Arlington, Texas v. FCC, 133 S. Ct. 

1863, 1871 (2013). The Acting Secretary argued in his opening brief that his interpretation that 

section 6(a) of the OSH Act authorized the Secretary to extend the scope of the Walsh-Healey 

 

1

 The legislative history of section 6(a) is equally explicit in recording the Congressional 

intent to adopt established federal standards with expanded coverage as rapidly as possible, 

without notice-and-comment rule-making, to provide immediate protection to workers. See

Acting Sec. Op. Br. at 4-5 (citing and quoting applicable passages of the legislative history). 

2

 Kiewit’s principal argument to the contrary rests on a misreading of what it calls the 

APA’s anti-supersession provision, 5 U.S.C. § 559, which says that “[A] [s]ubsequent statute 

may not be held to supersede or modify this subchapter [which includes notice-and-comment 

rule-making requirements]. . . except to the extent that it does so expressly.” The most natural 

reading of this provision is that a subsequent statute does not override the APA unless the statute 

does so explicitly, which section 6(a) of the OSH Act does. Kiewit, however, imports the 

additional requirement that the supersession is invalid unless it expressly specifies the extent of 

its supersession, i.e., in the case of section 6(a), expressly specifies the extent to which the Act is 

expanding the coverage of established federal standards. Kiewit’s Op. Br. at 16-17. Kiewit 

cites no authority for such an interpretation, and it is contrary to the plain meaning of the 

provision. 
3 

Act quick drenching standard to construction work is reasonable and entitled to deference. 

Acting Sec. Op. Br. at 16 (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 

467 U.S. 837, 843-44 (1984) (agency’s reasonable interpretation of a statute it administers given 

controlling weight)). Kiewit argues that the APA burdens of proof apply to the Secretary’s 

interpretation of section 6(a), and that the Secretary’s interpretation is not entitled to deference. 

Kiewit’s Op. Br. at 16-17. Kiewit is mistaken because section 6(a) expressly exempted the 

Secretary from notice-and-comment rule-making requirements. Thus, the APA burdens of proof 

do not apply. 

 The Acting Secretary also pointed out that his interpretation was expressed in a 

regulation implementing section 6(a), 29 C.F.R. § 1910.11(a), that made adopted established 

federal standards, such as § 1910.151(c), standards of general application that may be applied to 

employers in construction and other industries for which specific industry standards have been 

adopted if no such specific industry standard applies. Acting Sec. Op. Br. at 16 (quoting § 

1910.11(a) (“[t]he provisions of this Subpart B adopt and extend the applicability of established 

Federal standards in effect on April 28, 1971, with respect to every employer, employee, and 

employment covered by the Act.”) (emphasis added)). As the Acting Secretary noted, both the 

Commission and the Eighth Circuit upheld the validity of this regulation in Bechtel Power Corp., 

4 BNA OSHC 1005, 1008 (No. 5064, 1976) (Secretary acted within his statutory authority under 

sections (4)(b)(2) and 6(a) of the OSH Act in adopting § 1910.11 to extend established Federal 

standards to every covered place of employment), aff’d, 548 F.2d 248 (8th Cir. 1977); see also § 

1910.5(c)(2) (“any standard shall apply according to its terms to any employment and place of 

employment in any industry, even though particular standards are also prescribed for the 

industry, . . . to the extent that none of such particular standards applies”). 
4 

 Kiewit and APA Watch also claim that the Acting Secretary fails at step one of the 

Chevron analysis because the OSH Act unambiguously forecloses his interpretation of the scope 

of section 6(a)’s expansion of coverage.3

 Kiewit Op. Br. at 15-23; APA Watch Br. at 5. Kiewit 

and APA Watch argue that the only expansion of the scope of Walsh-Healey Act standards 

adopted as OSH Act standards that the statute permits is from federally supported manufacturing 

work to all covered manufacturing work affecting interstate commerce, but not to construction 

work. Kiewit Op. Br. at 22-23; APA Watch Br. at 11. 

 Kiewit and APA Watch are wrong on all counts. First, contrary to APA Watch’s 

assertion, the OSH Act is ambiguous about the scope of the authorized expanded coverage of 

established federal standards as shown by the fact that neither section 4(b)(2) nor section 6(a) 

specifies the extent of the expansion except to say that: 

 (1) the Secretary shall supersede these standards with OSH Act standards that he deems 

to be more effective, 29 U.S.C. § 653(b)(2); and 

 (2) the superseding standards shall be promulgated as soon as practicable, without 

notice-and-comment rule-making, unless the Secretary determines that the superseding standards 

would not result in improved safety or health for designated employees, 29 U.S.C. § 655(a). 

 

3

 Chevron requires a reviewing court to conduct a two-step review of an agency’s 

construction of a statute it administers. Chevron, 467 U.S. at 842-44. At step one, the court 

must consider whether Congress has directly spoken, through the text of the statute or its 

legislative history, to the precise question at issue. Id. at 842. If the answer is yes, the court 

must give effect to the unambiguously expressed intent of Congress. Id. at 842-43. If, however, 

the statute is silent or ambiguous with respect to the specific issue, the court proceeds to step 

two, consideration of the agency’s interpretation of the statute, and must defer to that 

interpretation as long as it is reasonable. Id. at 843-44. It is not clear why APA Watch thinks 

that Congress directly spoke to the scope of the authorized expansion of the coverage of 

established federal standards, APA Watch Br. at 5, but, as shown below, the OSH Act is silent 

about this matter. 
5 

 Furthermore, although the legislative history of section 6(a) explicitly calls for extension 

of coverage of the established federal standards “to additional employees who are not under the 

protection of such other Federal laws,” S. Rep. No. 91-1282, at 6 (1970), reprinted in Legislative 

History of the OSH Act of 1970, 141, 146, that legislative history does not specify the scope of 

the expansion. Thus, the OSH Act does not address the precise question at issue here, whether 

the scope of coverage of Walsh-Healy Act standards adopted as OSH Act standards under 

section 6(a) is expanded to include construction. 

 Next, contrary to Kiewit and APA Watch’s assertions and as the Acting Secretary argued, 

Acting Sec. Op. Br. at 15, 17, 20, both the OSH Act and the legislative history of section 6(a) 

support the Secretary’s interpretation of that section. As discussed above, the legislative history 

reveals Congress’s intent to extend the coverage of the established federal standards to 

unprotected workers immediately and without notice-and-comment rule-making. The legislative 

history also shows that Congress noted that “the heaviest losses are in construction work.” 116 

Cong. Rec. at 37,345, Legislative History, at 444. Moreover, as shown above, sections 4(b)(2) 

and 6(a) required the Secretary to supersede the established federal standards with OSH Act 

standards she deemed to be more effective. Therefore, the Secretary reasonably concluded that 

the OSH Act authorized him to extend the coverage of Walsh-Healey Act standards to 

construction, without notice-and-comment rule-making, where the superseding OSH Act 

standards provided protection from hazards to which construction workers were exposed but 

which were not covered by existing construction standards.4

 

4

 By the same authority, in particular, under section 6(a), the Secretary properly revoked 

29 C.F.R. § 1910.5(e), which limited the scope of standards derived from Walsh-Healey Act 

standards to manufacturing or supply operations. OSHA, “Applicability of Some Established 

Federal Standards,” 36 Fed. Reg. 18,080, 18,080-81 (1971). The revocation appropriately 

implemented the OSH Act’s command to supersede established federal standards with OSH Act 
6 

 Finally, the Acting Secretary showed in her opening brief that the courts of appeals and 

the Commission have long held that, in adopting established federal standards as OSH Act 

standards, the Secretary was not required to adopt the source standards’ scope and application 

limits. Acting Sec. Op. Br. at 12-14. Kiewit attempts to distinguish some of these cases on the 

grounds that they did not consider whether Walsh-Healey Act standards could be validly applied 

to construction work and because they did not consider the APA anti-supersession provision, 5 

U.S.C. § 559. Kiewit Op. Br. at 24-27. 

 These distinctions are invalid because all of the cited cases held that section 6(a) of the 

OSH Act authorized the Secretary extend coverage of the established federal standards beyond 

the scope limits of these standards because Congress ordered the Secretary to supersede these 

standards with more effective ones. Diebold, Inc. v. Marshall, 585 F.2d 1327, 1332 n.6 (6th Cir. 

1976); Lee Way Motor Freight, Inc. v. Secretary, 511 F.2d 864, 869 (10th Cir. 1975); Am. Can 

Co., 10 BNA OSHC 1305, 1310-1313 (No. 76-5162, 1982); Bechtel Power Corp., 4 BNA OSHC 

1005, 1008 (No. 5064, 1976), aff’d, 548 F.2d 248 (8th Cir. 1977); Brown & Root, Inc., 9 BNA 

OSHC 1407-09 (No. 77-805, 1981); Lee Way Motor Freight, Inc., 1 BNA OSHC 1689, 1691 

(No. 1105, 1974), aff’d, 511 F.2d 864, 869 (10th Cir. 1975); Coughlan Constr. Co., 3 OSHC 

1636, 1637-38 (Nos. 5303, 5304, 1975). Because it covers more workers, 29 C.F.R. § 

1926.50(g) is a more effective standard than its Walsh-Healey Act source standard, 41 C.F.R. § 

 

standards that the Secretary determined to be more effective as soon as possible and without 

notice-and-comment rule-making. 29 U.S.C. §§ 653(b)(2), 655(a). The revocation also obeyed 

section 6(a)’s command to promulgate a standard only if the Secretary determined that it would 

improve the safety and health of workers. Since promulgation of the former Walsh-Healey Act 

standard with the original Walsh-Healey Act scope limitations would not have met this statutory 

improvement requirement, revocation of these limitations was appropriate for this reason as well. 

Because the revocation fulfilled these statutory commands and facilitated the promulgation of 

OSH Act standards that section 6(a) expressly exempted from notice-and-comment rule-making 

requirements, Kiewit’s objection that the revocation required such rule-making, Kiewit Op. Br. 

at 10-11, 28-30, is without merit. 
7 

50-204.6(c). Moreover, the fact that these cases did not discuss 5 U.S.C. § 559 is immaterial 

because section 6(a) expressly ordered the Secretary to adopt the OSH Act standards superseding 

the established federal standards without regard to notice-and-comment rule-making 

requirements. 

II. The Secretary’s Codification of the Construction “Quick Drenching” Provision, 

 29 C.F.R. § 1926.50(g), Was Not a Substantive Change Requiring Notice-and- 

 Comment Rule-Making. 

 The Acting Secretary showed in his opening brief that the Walsh-Healey Act “quick 

drenching” standard, 41 C.F.R. § 50.204.6(c), an established federal standard, was adopted as an 

OSHA standard of general application under section 6(a) of the Act, codified at 29 C.F.R. § 

1910.151(c). Sec. Op. Br. at 21. As a result, § 1910.151(c) became applicable “to every 

employer, employee, and employment covered by the Act,” § 1910.11(a), including construction 

employees exposed to injurious corrosive materials, from its effective date as an OSH Act 

standard. Sec. Op. Br. at 21. Since the incorporation of the “quick drenching” provision into the 

construction standard at § 1926.50(g) was a mere codification of a requirement that already 

applied to construction work, the adoption of the construction quick drenching provision was not 

a substantive change requiring notice-and-comment rule-making. Sec. Op. Br. at 21. 

 Kiewit and APA Watch assert that § 1926.50(g) is invalid because the Secretary 

did not demonstrate good cause for dispensing with the notice and comment procedures 

of the APA, 5 U.S.C. § 553, and the OSH Act, 29 U.S.C. § 655(b). Kiewit Op. Br. at 33-

35; APA Watch Br. at 13-14. In particular, Kiewit claims that the APA “good cause” 

exception, 5 U.S.C. § 553(b)(B),5

 that the Secretary invoked in adopting § 1926.50(g), 

 

5

 This provision states: “Except when notice or hearing is required by statute, this 

subsection does not apply— 

. . . 
8 

“Incorporation of General Industry Safety and Health Standards Applicable to 

Construction Work,” 58 Fed. Reg. 35,076, 35,077 (1993), did not apply to the 

promulgation of that standard because section 6(b) requires notice and, when requested, a 

hearing for rules adopted under its provisions. Kiewit Op. Br. at 45-46. Furthermore, 

Kiewit contends that, even if the exception did apply, the Secretary’s statement of good 

cause, 58 Fed. Reg. at 35,077, was insufficient. Kiewit Op. Br. at 34. 

 Kiewit and APA Watch are incorrect. The notice-and-comment requirements of 

the APA and the OSH Act apply only to substantive rules, 5 U.S.C. § 553(d), and OSH 

Act standards, 29 U.S.C. § 655(b), not to mere codifications of existing requirements. 

The 1993 promulgation of § 1926.50(g) was a purely ministerial action, part of the 

Secretary’s consolidation in one volume of all regulations that the Secretary had 

previously determined were applicable to construction. “Incorporation,” 58 Fed. Reg. at 

35,076 (1993). Thus, the incorporation of the “quick drenching” provision did not 

change the rights and obligations of construction employers in any way, and therefore 

was not subject to notice-and-comment rule-making requirements. 

 For the same reason, the limitation on the “good cause” exception (“except when 

notice or hearing is required by statute, this subsection does not apply”) that Kiewit 

claims makes the exception inapplicable here is itself inapplicable because the noticeand-comment rule-making requirements of the APA, 5 U.S.C. § 553, and section 6(b) of 

the OSH Act did not apply. These requirements apply only to the promulgation of 

 

(B) when the agency for good cause finds (and incorporates the finding and a brief 

statement of reasons therefor in the rules issued) that notice and public procedure thereon are 

impracticable, unnecessary, or contrary to the public interest.” 

5 U.S.C. § 553(b)(B). 
9 

substantive rules or standards, and not to mere codifications of existing requirements. 

Since neither statute required notice-and-comment rule-making for the codification of the 

“quick drenching” provision in the construction standard (part 1926), the APA “good 

cause” exception applied here.6

 

III. Kiewit’s Merits Arguments Are Not Properly Before the Commission. 

Kiewit argues on review that if the Commission finds that the quick drencing standard is 

valid, it should nevertheless vacate the citation because the Secretary did not provide sufficient 

evidence to survive the company’s motion for summary judgment.7 Kiewit Op. Br. at 46-48. As 

shown below, the merits of the citation were not directed for review and are not properly before 

the Commission. Furthermore, since the ALJ never decided Kiewit’s motion for summary 

judgment, and, contrary to Kiewit’s assertion, the Secretary did submit sufficient evidence to 

defeat the company’s summary judgment motion, this case should be remanded for a hearing on 

the merits if the Commission upholds the validity of § 1926.50(g). 

 

6

 Kiewit’s assertion that the Secretary’s statement of good cause, “Incorporation,” 58 

Fed. Reg. at 35,077, was insufficient because it did not explain why the promulgation of § 

1926.50(g) was not a substantive change, Kiewit Op. Br. at 34, is not well-founded. Kiewit 

improperly takes the statement out of the context of the immediately preceding “Background” 

section, which explained that the Secretary had long applied certain general industry standards, 

including the quick-drenching provision, to construction. 58 Fed. Reg. at 35,076, 35,084, 

35,305. Thus, the preamble as a whole explains that the incorporation of § 1910.151(c) into part 

1926 was purely ministerial because the incorporation merely codified an existing requirement. 

Accordingly, the statement of good cause properly concluded that the incorporation did “not 

affect the substantive requirements or coverage of the standard[] [itself] . . . or modify or revoke 

existing rights or obligations . . .[or] establish new ones.” Id. at 35,077. Thus, the statement met 

the APA requirement that it be “incorporate[d] . . . in the rule[] issued.” APA, 5 U.S.C. § 

553(b)(B), quoted supra p.7-8 n.5. 

7

 The ALJ did not reach Kiewit’s motion for summary judgment because he disposed of 

the case by granting the company’s motion to dismiss on the ground that § 1926.50(g) was 

invalid. ALJ Dec. 1-2. 
10 

It is well settled that the Commission has discretion not to consider arguments on issues 

which were not included in the direction for review or the briefing order. Administrative 

Procedure Act, 5 U.S.C. § 557(b) (“On appeal from or review of the initial [judge’s] decision, 

the agency . . . may limit the issues on notice or by rule”); A.J. McNulty & Co., 19 BNA OSHC 

1121, 1122 n.1 (No. 94-1758, 2000); J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2204 & n.6 

(No. 87-2059, 1993); Tampa Shipyards Inc., 15 BNA OSHC 1533, 1535 n.4 (Nos. 86-360, 86-

469, 1992). This policy of considering only issues that the Commission asks the parties to brief 

avoids needlessly complicating and lengthening the review of the case, and allows the 

Commission to apply its limited resources only to matters that it deems to merit review. 

McNulty, 19 BNA OSHC at 1122 n.1; Tampa Shipyards Inc., 15 BNA OSHC at 1535 n.4. Since 

neither the direction for review nor the briefing order in this case included any merits issues, the 

Commission should decline Kiewit’s invitation to decide its motion for summary judgment, and 

remand the case to the ALJ for a decision on the merits. 

If the Commission should reach the summary judgment motion, however, it should find 

that the Secretary designated sufficient evidence to show that there was a genuine issue of 

material fact, and remand the case for hearing. Summary judgment is appropriate only “[w]here 

the record taken as a whole could not lead a rational trier of fact to find for the non-moving 

party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The 

movant has the burden of pointing out the absence of evidence supporting the nonmoving party’s 

case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). As shown below, Kiewit failed to 

carry its burden and its motion should be denied. 

Kiewit first claims that the Secretary failed to present sufficient evidence that the 

Scotchgard Resin used on Kiewit’s work site was an “injurious corrosive material” within the 
11 

meaning of § 1926.50(g). Kiewit Op. Br. at 47. But the Secretary submitted a declaration from 

Compliance Officer Michelle Sotak that said that this material was stored in buckets that were 

labeled “corrosive,” that the material safety data sheet for Scotchgard Resin classified it as 

corrosive, and warned that it could cause eye and skin burns. Sotak Decl., paras. 3, 6. The data 

sheet also instructed workers who get Scotchgard Resin in their eyes to flush them immediately 

with a large amount of water for at least fifteen minutes and seek immediate medical attention. 

Id., para 3. Furthermore, the data sheet reported that Scotchgard Resin has a Hazardous Material 

Identification System health hazard rating of three on a scale of zero to four. Id., para. 7. This 

rating means that exposure to Scotchgard Resin is likely to result in a major injury unless prompt 

action is taken and medical treatment is received. Id. This evidence is sufficient to establish at 

least a genuine issue of material fact about whether Scotchgard Resin is injuriously corrosive. 

 Kiewit also asserts that the Secretary failed to submit evidence: 

 (1) that the distance to the nearest flushing facility was too far 

 away; 

 (2) showing how far the cited operation was from the closest water hose; 

 (3) refuting Kiewit’s evidence that water hoses were common throughout 

the work site, usually as close together as every twenty feet; and 

 (4) refuting Kiewit’s evidence that an employee could easily walk to a 

hose in a few seconds. 

Kiewit Op. Br. at 48. 

Kiewit overlooks the fact that its motion must be denied if there is evidence in 

“the record taken as whole” of a genuine dispute of material fact. Matsushita, 475 U.S. at 

587; Fed. R. Civ. P. 56(a). Here, evidence submitted either by the Secretary or Kiewit 
12 

established such genuine disputes. Kiewit’s witness, employee G.H. Perry, declared that 

break trailers containing eyewash flush bottles were about thirty-five to seventy yards 

away from the places where he would use Scotchgard Resin. Perry Decl., para. 13. In 

Conagra Flour Milling Co., 16 BNA OSHC 1137, 1139 (No. 88-1250, 1993), the 

Commission noted the compliance officer’s testimony that a quick-drenching facility 

would have to be located within twenty-five feet, or about eight yards, of the cited work 

station to be suitable under § 1910.151(c), the identical general industry counterpart of 

§1926.50(g). Kiewit’s eyewash stations were considerably farther away here. Moreover, 

Compliance Officer Sotak declared here that a Kiewit employee told her that he and other 

employees used Scotchgard Resin “in areas of the job site where there were not 

eyewashes nearby.” Sotak Decl., para. 5. Thus, there is a genuine dispute of material 

fact about whether Kiewit’s flushing facilities were too far away (item (1) above). 

 There are also genuine disputes of fact about whether the water hoses were too far 

from the cited operation (items (2) and (3) above). Although Kiewit presented evidence 

that water hoses were common at the work site and usually about twenty feet apart, Perry 

Decl., para. 15, that evidence did not say how far away the hoses were from the areas 

where employees used Scotchgard Resin. Furthermore, since the hoses could be used to 

wash chemicals out of employees’ eyes, id., the employee statement that Compliance 

Officer Sotak reported, that there were no eyewashes near areas where some employees 

used Scotchgard Resin, Sotak Decl., para. 5, may have also applied to hoses. 

 Finally, there is a genuine dispute of material fact about whether an employee could 

easily walk to a water hose in a few seconds (item (4) above). Although Kiewit’s witness, Mr. 

Perry, so declared, his declaration did not say that an employee could do so with Scotchgard 
13 

Resin in his eyes. Perry Decl., para. 15. The Secretary presented evidence that Scotchgard 

Resin could cause eye burns requiring flushing with a large amount of water for at least fifteen 

minutes and immediate medical attention. Sotak Decl., para. 6. It is at least arguable that an 

employee with such an injury, and possibly difficulty seeing, could not easily walk to a water 

hose in a few seconds. Furthermore, the employee statement that Compliance Officer Sotak 

reported concerning the absence of eyewashes near areas where some employees used 

Scotchgard Resin, Sotak Decl., para. 5, implies that at least some employees using Scotchgard 

resin were too far away to walk to a water hose in a few seconds. 

 Thus, the record as a whole does not support summary judgment. This case should be 

remanded for a hearing on the merits of the citation. 

IV. If the Commission Should Find § 1926.50(g) Invalid, Declaratory 

 Relief Would Be Superfluous and Should Be Denied. 

 Although Kiewit requests declaratory relief in the conclusion of its opening brief, Kiewit 

Op. Br. at 48, according to both D.C. Circuit and Commission precedent, the company waived its 

claim for such relief by not arguing the merits of the claim in its brief. Salazar v. Washington 

Metro. Transit Auth., 401 F.3d 504, 507-08 (D.C. Cir. 2005) (argument not raised in party’s 

briefs is waived) (citing Ark Las Vegas Restaurant Corp. v. NLRB, 334 F.3d 99, 108 n.4 (D.C. 

Cir. 2003); Altor Inc., 23 BNA OSHC 1458, 1460 n.3 (No. 99-0958, 2011) (claims not addressed 

in a party’s brief are abandoned). Kiewit’s request for declaratory relief in the conclusion of its 

brief, without discussing the merits, was not enough to preserve the argument. Alabama Power 

Co. v. Gorsuch, 672 F.2d 1, 7 n.34 (D.C. Cir. 1982) (court will not decide a claim mentioned in a 

brief that does not discuss the claim’s merits) (citing Kemlon Prods. & Dev. Co. v. United States, 

646 F.2d 223, 224 (5th Cir. 1981)). Accordingly, Kiewit has abandoned its request for 

declaratory relief, and the Commission should not consider it. 
14 

 If, however, the Commission should find § 1926.50(g) invalid and decide that Kiewit has 

not abandoned its claim for declaratory relief, the Commission should reject the claim as 

superfluous. As the Secretary showed in her opening brief, declaratory relief would serve no 

useful purpose that would not be served by a judgment that the cited standard is invalid. Acting 

Sec. Op. Br. at 25. Every purpose that Kiewit earlier claimed, Kiewit’s Motion to Dismiss at 64, 

would be achieved by a declaratory order – resolution of this controversy, removal of uncertainty 

about the company’s future obligations, and clarification of the status of a frequently cited 

standard – would also be achieved by a judgment that § 1926.50(g) is invalid.8

 The Commission 

has rejected claims for declaratory relief as moot where the judgment on the merits achieved all 

the purposes that the winner sought in requesting a declaratory order. Granite City Terminals 

Corp., 12 BNA OSHC 1741, 1748 (No. 83-882-S, 1986) (declining declaratory relief where 

vacation of the alleged violation resolved the employer’s uncertainty about its method of 

compliance); Madison Underground Inc., 16 BNA OSHC 1297, 1298 (No. 90-3249, 1993) 

(declining declaratory relief where Secretary’s interest in having the violation affirmed to 

establish the company’s violation history had already been achieved by affirmance of a separate 

willful item). 

 Similarly here, every purpose that Kiewit claims would be served by a declaratory order 

would be achieved by a judgment that the cited standard is invalid. Alternatively, such relief 

would not be warranted if the provision is upheld. Accordingly, declaratory relief would serve 

no useful purpose and should be denied. 

 

8

 APA Watch was also unable to specify a useful purpose that declaratory relief would 

serve here that would not be achieved by a judgment finding the cited standard invalid. APA 

Watch Br. at 20-22. 
15 

CONCLUSION 

For these reasons and the reasons stated in the Acting Secretary’s Opening Brief, the 

Commission should uphold the validity of § 1926.50(g), and remand this case to the ALJ for 

decision on the merits. 

 M. PATRICIA SMITH 

 Solicitor 

 

 JOSEPH M. WOODWARD 

 Associate Solicitor for 

 Occupational Safety 

 and Health 

 CHARLES F. JAMES 

 Counsel for Appellate Litigation 

 

 /s/ Scott Glabman____________ 

 SCOTT GLABMAN 

 Senior Appellate Attorney 

 U.S. Department of Labor 

 Frances Perkins Bldg., 

 Room S-4004 

 200 Constitution Avenue, N.W. 

 Washington, D.C. 20210-0001 

 (202) 693-5493 

June 24, 2013 
 

CERTIFICATE OF SERVICE 

 I hereby certify that, on this 24th day of June 2013, I served a copy of the 

preceding Brief for the Acting Secretary of Labor by fax and by e-mail on: 

Arthur G. Sapper, Esq. 

Fax: (202) 756-8087 

E-mail: asapper@mwe.com> 

Lawrence J. Joseph, Esq. 

Fax: (202) 318-2254 

E-mail: ljoseph@larryjoseph.com 

/s/ Scott Glabman_________________________________ 

SCOTT GLABMAN 

Attorney for the Secretary of Labor