United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W., Ninth Floor

 Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

MANSFIELD INDUSTRIAL, INC.,

Respondent.

OSHRC Docket No. 17-1214

BRIEFING NOTICE

The parties are requested to brief the following issues:

(1) Did the judge err in declining to address Respondent’s argument that the Process 

Safety Management provision cited in Citation 1, Item 1a, 29 C.F.R. § 1910.119(h)(3)(ii)

(contract employer responsibilities), preempts the Hazard Communication provision cited 

in Citation 1, Item 1b, 29 C.F.R. § 1910.1200(h)(1) (employee information and training)?

(a) In briefing this issue, the parties should address whether the Commission 

should revisit its caselaw holding that regulatory preemption pursuant to 29 C.F.R. 

§ 1910.5(c)(1) is an affirmative defense. See Spirit Aerosystems, Inc., 25 BNA 

OSHC 1093, 1097 n.7 (No. 10-1697, 2014) (“[P]reemption by a more specifically 

applicable standard is an affirmative defense which the respondent must raise in its 

answer.”). Specifically, should the Commission find that regulatory preemption is 

similar to statutory preemption under section 4(b)(1) of the Occupational Safety 

and Health Act, which some U.S. Courts of Appeals have held is a jurisdictional 

issue. See, e.g., U.S. Air, Inc. v. OSHRC, 689 F.2d 1191, 1193 (4th Cir. 1982)

(“[P]reemption [under section 4(b)(1)] . . . is not a matter of affirmative defense but 

is jurisdictional, properly raisable . . . without regard to whether it was suggested at 

the administrative hearing on the citation.”); Columbia Gas of Pa., Inc. v. Marshall, 

636 F.2d 913, 918 (3d Cir. 1980) (“[A section 4(b)(1) preemption] claim can be 

raised initially on appeal or by the court sua sponte.”).1

(b) The parties should also address the merits of the preemption issue.

 

1 Commissioner Attwood concludes there is no basis upon which to rule—contrary to wellsettled precedent—that the affirmative defense that another OSHA standard more 

specifically applies is “similar to” a jurisdictional question that can be raised at any time in 

a proceeding. She therefore does not join her colleagues in requesting briefing on this 

issue.
2

(2) Did the judge err in affirming Citation 1, Item 2, which alleges a violation of 29 

C.F.R. § 1910.132(d)(1) (hazard assessment and equipment selection)? Specifically, did 

the judge err in concluding that Respondent failed to “conduct an assessment to determine 

if hazards are present or are likely to be present which necessitate the use of personal 

protective equipment,” particularly in light of Exhibit C-15, which was admitted into 

evidence at the hearing?

The parties are advised that when a case is directed for review to consider either the 

merits or characterization of an item, the appropriateness of the penalty is also subject to 

review. Accordingly, the parties may address the amount of the penalty if they so choose.

All briefs are to be filed in accordance with Commission Rule 93.2 The first brief 

is to be filed within 40 days of this notice. A party not intending to file a brief shall notify 

the Commission in writing within the applicable time for filing briefs, and shall serve a 

copy on all other parties. The time for filing briefs (or similar notices of intent) of opposing

parties shall commence on the date of service.

BY DIRECTION OF THE COMMISSION

JOHN X. CERVENY

EXECUTIVE SECRETARY

Dated: January 3, 2019 /s/____________________________

Susan M. Chagrin

Deputy Executive Secretary

 

2 The Commission requests that all briefs include an alphabetical table of authorities with 

references to the pages on which they are cited, and that an asterisk be placed in the lefthand margin of the table to indicate those authorities on which the brief principally relies. 

The Commission also requests that copies of cited authority, other than statutes, 

regulations, case law, law journal articles, and legal treatises, be provided to the 

Commission and to the opposing party. Parties should be cautioned that these materials 

will be considered only if appropriate.