! 

4 ' 

l 

J 

l I 

l 

j 

No. 11-2395 

UNITED ST A TES OF AMERICA 

OCCCPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SETH D. HARRIS, 

ACTING SECRETARY OF LABOR, 

Complainant, 

v, 

KIEWIT POWER CONSTRUCTORS CO., 

Respondent 

BRIEF FOR THE ACTING SECRETARY OF LABOR 

-········--··~··---------------

MAYI4,2013 

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 
TABLE OF CONTENTS 

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

ST A TEMENT OF ISSUES ......................................................................................................... . 

STATEMENT OF THE CASE..................................................................................................... 1 

STATUTORY AND REGULATORY BACKGROUND ............................................................ 2 

I. Key Statutory Provisions...................................................................................... 2 

IL Legislative History................................................................................................ 4 

III. Regulatory History ................................................................................................. 5 

THE AU'S DECISION ................................................................................................................. 8 

SUMMARY OF THE ARGUMENT ........................................................................................... 9 

ARGUMENT 

I. The Secretary Had Authority under Section 6(a) of the OSH Act To 

Extend the Coverage of the Walsh-Healey Act "Quick Drenching" 

Standard to Construction Employers Without Notice-and-Comment 

Rule-Making ......................................................................................................... 10 

IL The AU Erred in Finding That the Secretary's Adoption of the 

Construction Quick Drenching Provision Was a Substantive Change 

Requiring Notice-and-Comment Rule-Making .................................................... 21 

III. In the Event That The Commission Finds § I 926.50(g) Invalid, 

Declaratory Relief Would Serve No Useful Purpose and Should Be 

Denied ................................................................................................................... 25 

CONCLUSION ............................................................................................................................. 27 

CERTIFICATE OF SERVICE 

ii 
TABLE OF AUTHORITIES 

CASES: 

Arias Roofing v. OSHRC, 

430U.S.442(1977) .......................................................................................................... l5 

B.J. Hughes, Inc., 

10 BNA OSHC 1545 (No. 76-2165, 1982) ...................................................................... 23 

•Bech/el Power Corp., 

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

(8th Cir. 1977) ............................................................................................ 6, 13, 16, 18, 22 

Brown & Roal, Inc., 

9 BNA OSHC 1407 (No. 77-805, 1981) ........................................................................... l3 

•Am. Can Co .. 

I 0 BNA OSHC 1305 (No. 76-5162, 1982) ........................................... 1, 3, 12, 13, 14, I 5 

Chevron, US.A .. Inc. v. Natural Resources Defense Council, 

467 U.S. 837 (1984) .......................................................................................................... 16 

Coughlan Cons/r. Co., 

3 OSHC 1636 (Nos. 5303, 5304, 1975) ...................................................................... 14, 22 

•Diebold, Inc. v. Marshall, 

585 F.2d 1327 (6th Cir. 1976) ...................................................................................... 5, 12 

Granile City Terminals Corp., 

12 BNA OSHC 1741 (No. 83-882-S, 1986) ..................................................................... 26 

Grun/a/ & Co. v. S!einberg, 

837 F. Supp. 85 (D. N.J. 1993) ......................................................................................... 25 

• Lee Way Mo/or Freight, Inc. v. Secretary, 

511 F.2d 864 (10th Cir. 1975) ................................................................................... 12, 18 

•Lee Way Motor Freight, Inc., 

I BNA OSHC 1689 (No. I I05, 1974), affd, 

511 F.2d 864 (10th Cir. 1975) ........................................................................ 14, 17, 21, 22 

*Authorities chiefly relied on are marked with an asterisk. 

iii 
Madison Underground Inc., 

16 BNA OSHC 1297 (No .. 90-3249, 1993) ..................................................................... 26 

Maryland Cas. Co. v. Rosen. 

445 F.2d 1012 (2d Cir. 1971) ............................................................................................ 25 

Underhill Conslr. Corp., 

2 BNA OSHC 1556 (No. 1307, 1975), affd, 526 F.2d 53 (2d Cir. 1975) ........................ 14 

STATUTES 

Occupational Safety and Health Act of 1970, 

Pub.L. No. 91-596, § 34, 84 Stat 1590, 1620 (1970) ........................................... 3 

§3(5), 29 u.s.c. § 652(5) ..................................................................................... 17 

§3(8), 29 u.s.c. § 652(8) ..................................................................................... 2 

§3(10), 29 U.S.C. § 652(10) ............................................................................... 2, 3 

§4, 29 u.s.c. § 653 ............................................................................................... 8 

§4(b)(2), 29 U.S.C. § 653(b)(2) ..................................................................... passim 

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

§6{b). 29 u.s.c. § 655(b) ..................................................................................... 8 

Administrative Procedure Act, 

5 u.s.c. § 553 ....................................................................................................... 8 

5 U.S.C. § 554(e) .................................................................................................. 25 

REGULATIONS 

29 CFR Parr 1910 ....................................................................................................... passim 

29C.F.R.§ 1910.5 ........................................................................................................... 1, 8 

29 C.F.R.§ 1910.5(c)(2) .......................................................................................... 6, 16, 21 

iv 
29 C.F.R.§ 1910.11 ................................................................................................. 6, 16, 22 

29 C.F.R. § 1910.l l(a) ........................................................................ I, 6, 9, 10, 16, 21, 24 

29 C.F.R. 1910.12(b) ........................................................................................................ 23 

29 C.F.R. § 1910.22(c) ...................................................................................................... 21 

29 C.F.R. § I 918.23(b) ..................................................................................................... 26 

29 C.F.R. § 1910.151(c) ............................................................................................. passim 

29 C.F.R. Part 1926 .................................................................................................... passim 

29 C.F.R. § I 926.28(a ) ..................................................................................................... 23 

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

41 C.F.R. § 50-204............................................................................................................ 3 

41 C.F.R. §50.204. l(a)-(c) ................................................................................................ 13 

41 C.F.R. § 50-204.6(c) ............................................................................................. passim 

MISCELLANEOUS: 

Federal Register Notices: 

34 Fed. Reg. 7946, 7948 (1969) ........................................................................... 3 

36 Fed. Reg. 10,466 .............................................................................................. 5 

36 Fed. Reg. 10,601 .......................................................................................... 5, 21 

44 Fed. Reg. 8,577 (1979) ................................................................................ 7, 22 

44 Fed. Reg. 8,589 ............................................................................................ 7, 22 

58 Fed. Reg. 35,076 (1993) .................................................................... 6, 7, 22, 24 

58 Fed. Reg. 35,077 ...................................................................................... 7, 8, 24 

58 Fed. Reg. 35,084 ............................................................................................... 7 

58 Fed. Reg. 35,305 .............................................................................................. 7 

v 
Legislative Materials 

116 Cong. Rec. 37,317, 37,345, 42, 199, 42,204 (1970), reprinted in legislative 

HisloryoftheOSHActof1970411,444, 1199. 1212 ......................................... 4 

116 Cong. Rec. 37,317, 37,345 (1970) (statement of Sen. Williams), 

reprinted in legislative History of the OSH Act of 1970, at 411, 444 .................. 11 

116 Cong. Rec. at 37,345, Legislative History, at 444 ......................................... 4 

116 Cong. Rec. 38,366, 38,388 (1970} (statement of Rep. Gaydos), Legislative 

History, at 977, 1036 ......................................................................................... 4, 11 

116 Cong. Rec. at 38,367-68, Legislative History at 981-83 (statement of Rep. 

Anderson) .......................................................................................................... 5, 11 

H.R. 19200, the Steiger-Sikes bill, 116 Cong. Rec. at 

42,204, Legislative History at 1212 ...................................................................... 4 

116 Cong. Rec. 38,697, 38, 715, 38, 723-24 ( 1970), Legislative History, I 057, 

l 091-92, 1112, 1117 ............................................................................................. 19 

S. Rep. No. 91-1282, at 6, 55 (1970), Legislative History 141, 146, 

194 ..................................................................................................... 5, 11, 13,17-19 

H.R. 16785, 91" Cong. §§ 6, 11(b)(1970), Legislative History, 

721, 727, 740-41 .............................................................................................. 18-19 

H.R. 19200, 91 st Cong. §§ 6(b), l 0-11, Legislative History 740-41, 

763, 770, 785-96 ........................................................................................ 4, 11, 19 

vi 
STATEMENT OF ISSUES 

(1) Considering Am. Can Co., 10 BNA OSHC 1305 (No. 76-5162, l982) 

(consolidated), was the Secretary permitted, under section 6(a) of the Occupational 

Safety and Health Act ("OSH Act"}, to promulgate 41 C.F.R. § 50-204.6(c), an 

established federal standard under the Walsh-Healey Act requiring quick drenching 

facilities for exposed employees, as an occupational safety or health standard applicable 

to construction employers? 

(2) Inlightof29C.F.R. §§ 1910.5, 1910.ll(a}and l910.15l(c),didthe 

administrative law judge ("ALJ") err in finding the incorporation of the general industry 

''quick drenching" provision into the construction standard at § 1926.SO(g) invalid 

because the Secretary did not conduct notice-and-comment rule-making? 

(3) Assuming that Respondent Kiewit Power Constructors, Inc. prevails on the 

first two issues, is the order that Kiewit seeks, declaring 29 C.F.R. § 1926.SO(g) invalid, 

available, and, if so, would such declaratory relief be appropriate?' 

ST A TEMENT OF THE CASE 

This case concerns a citation that the Secretary issued to Respondent Kiewit 

Power Constructors Company, alleging a serious violation of29 C.F.R. § 1926.SO(g), 

after inspecting Kiewit's work site in Rogersville, Tennessee on August 3, 2011. ALJ 

Dec. I; Amended Complaint, Ex. A. Kiewit's principal place of business is in Lenexa, 

Kansas. Answer,§ A, para. 3. The citation proposed a penalty of$3,400. Amended 

Complaint, Ex. A. Kiewit moved to dismiss the complaint on the ground that the cited 

1 The Commission's briefing notice also asked the parties to brief whether Kiewit's 

challenge to the validity of29 C.F.R. § 1926.SO(g) is timely. Briefing Notice I (Mar. 4, 2013). 

Since the Secretary does not contest Kiewit's right to challenge this standard during an 

enforcement proceeding, he will not brief this issue here. 
provision was invalidly adopted without notice-and-comment rule-making. ALJ Dec. l; 

Kiewit Motion to Dismiss at 64. The ALJ granted the motion and vacated the citation. 

ALJ Dec. 10. The Acting Secretary of Labor filed a petition for discretionary review of 

the ALJ's decision. The Commission directed this case for review, and on March 4, 

2013, issued a briefing notice specifying the issues to be briefed on appeal. 

STATUTORY AND REGULATORY BACKGROUND 

I. Key Statutory Provisions 

The Secretary adopted the Walsh-Healey Act "quick drenching" provision, 41 

C.F.R. § 50-204.6(c), as an occupational safety and health standard under sections 3(8), 

3(10), 4(b)(2) and 6(a) of the Act. Section 6(a) of the OSH Act provides: 

Without regard to chapter 5 of title 5, United States Code [the rulemaking provisions of the Administrative Procedure Act] or to the other 

subsections of this section, the Secretary shall, as soon as practicable 

during the period beginning with the effective date of this Act and 

ending two years after such date, by rule promulgate as an 

occupational safety or health standard any national consensus 

standard, and any established Federal standard, unless he determines 

that the promulgation of such a standard would not result in improved 

safety or health for specifically designated employees. 

29 U.S.C. § 655(a) (emphasis added). 

Section 3(8) of the OSH Act defines "occupational safety and health standard "as 

"a standard which requires conditions, or the adoption or use of one or more practices, 

means, methods, operations or processes, reasonably necessary or appropriate to provide 

safe or healthful employment and places of employment." 29 U.S.C. § 652(8). Section 

3(10) of the OSH Act defines an "established Federal standard" as "any operative 

occupational safety and health standard established by any agency of the United States 

and presently in effect, or contained in any Act of Congress in force on the date of 

2 
enactment of this Act."2 29 U.S.C. § 652(10). The Walsh-Healey Act "quick drenching" 

standard, 41 C.F.R. § 50-204.6(c), was such an operative safety and health standard in 

effect on December 29, 1970, the date that the OSH Act was enacted. See Dep't of 

Labor, Title 41, Part 50-204, "Safety and Health Standards for Federal Supply 

Contracts," 34 Fed. Reg. 7946, 7948 (1969) (promulgating§ 50-204.6(c)). Thus, the 

Walsh-Healey Act "quick drenching" standard qualified as an established federal 

standard. 

Further, section 4(b)(2) of the OSH Act provides that: 

[t]he safety and health standards issued under the . Walsh· 

Healey Act ... are superseded on the effective date of 

corresponding standards, promulgated under this Act, 

which are determined by the Secretary to be more effective. 

Standards issued under the laws listed in this paragraph and in 

effect on or after the effective date of this chapter shall be deemed 

to be occupational safety and health standards issued under this 

chapter, as well as under such other Acts. 

29 U.S.C. § 653(b)(2). Accordingly, the "quick drenching" provision promulgated under 

the OSH Act in 29 C.F.R. § l910. I 5l{c) is an occupational safety and health standard, 

subject to OSH Act requirements, not a Walsh-Healey Act standard, governed by WalshHealey Act requirements.3 

2 The OSH Act was enacted on December 29, 1970. OSH Act, Pub.L. No. 91-596, § 34, 

84 Stat. 1590, 1620 ( 1970). 

3 OSH Act standards are enforceable by the Act's flexible enforcement scheme of 

citations, penalties and requests for injunctive relief against imminent dangers. Am. Can Co., 10 

BNA OSHC at 1312 & n.19. Walsh-Healey Act standards, by contrast, are backed up only by an 

inflexible enforcement scheme of federal contract cancellations and blacklisting. Id. at 1312 & 

n.17. 

3 
II. Legislative History 

The legislative history of section 6(a) of the OSH Act reveals Congress's intent to 

require the Secretary to adopt established federal standards as OSH Act standards as soon 

as possible, without notice-and-comment rule-making, to provide immediate protection to 

underprotected workers. In the floor debates, members of Congress cited the large 

number of occupational injuries and the vast number of workers who lacked federal 

protection. Senator Williams, the sponsor of the bill that passed the Senate, S. 2193, 

pointed out, in the Senate debate, that every year, "over 7 million of the working force of 

80 million are injured, 2.2 million are disabled ... and 14,500 are killed." 116 Cong. 

Rec. 37,317, 37,345, 42, 199, 42,204 (1970), reprinted in Legislative History of the OSH 

Act of 1970 411, 444, 1199, 1212. Senator Williams also noted that "the heaviest losses 

are in construction work." 116 Cong. Rec. at 37,345, Legislative History, at 444. In the 

House debate, Representative Gaydos observed that the Act "would protect at least 11 

million workers now outside Federal protection ... [and] at least 80 million workers now 

afforded insufficient protection." 116 Cong. Rec. 38,366, 38,388 (1970), Legislative 

History 977, I 036. 

The bill that passed the Senate, S-2193, the Williams bill, and the one that passed 

the House, H.R. 19200, the Steiger-Sikes bill, 116 Cong. Rec. at 42,204, Legislative 

History at 1212, both emphasized the need to promulgate established federal standards as 

soon as possible, without notice-and-comment rule-making, to extend immediate, 

expanded protection to unprotected workers. The Senate Committee on Labor and Public 

Welfare, in recommending the passage of the Williams bill, S. 2193, reported that "[t]he 

bill also provides for the issuance in similar fashion [i.e., as rapidly as possible and 

4 
without notice-and-comment rule-making] 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." S. 

Rep. No. 91-1282, at 6 (1970), Legislative History 141, 146. The purpose of this rapid 

adoption and expansion in coverage of established federal standards was to provide an 

immediate nation-wide minimum level of health and safety. Id. The Steiger-Sikes bill, 

H.R. 19200, also provided for immediate promulgation of existing federal standards, 

without invoking APA procedures, lo provide immediate protection to workers. 116 

Cong. Rec. at 38,367-68, Legislative History at 981-83 (statement of Rep. Anderson). 

III. Regulatory History 

On May 29, 1971, pursuant to section 6(a) of the OSH Act, the Secretary adopted 

the Walsh-Healey Act "quick drenching" standard, 41 C.F.R. § 50-204.6(c), an 

"established federal standard," as an OSH Act general industry standard, codified at 29 

C.F.R. § 1910.151(c).4 OSHA, "Part 1910-0ccupational Safety and Health Standards, 

National Consensus Standards and Established Federal Standards," 36 Fed. Reg. 10,466, 

10,601 (1971). Section 1910.15l(c), which is textually identical to its Walsh-Healey Act 

source, 41 C.F.R. § 50--204.6(c), provides that "[w]here 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." 29C.F.R. § 1910.lSl(c). 

4 Established federal standards promulgated under section 6(a) of the OSH Act, are exempt from 

notice-and-comment rule-making requirements because Congress recognized an immediate need 

to provide a nation-wide minimum level of safety and health, and because these standards would 

have already been subjected to close public scrutiny in their original issuance. Diebold, Inc. v. 

Marshall, 585 F.2d, 1327, 1330-31 (6'h Cir. 1978). 

5 

I 

I 
Adopted established federal standards, such as§ 1910.ISl(c), have general 

application and 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. 29 C.F.R. § 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); 

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 (Sill 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"). 

From the early days of the OSHA program, the Secretary recognized that: 

[t]here are circumstances where the safety and health standards for construction 

employment (29 CFR part 1926) are less comprehensive than the safety and 

health standards for general industry employment (29 CFR part 1910). In a 

number of cases, the Agency has determined that it is appropriate to cite a 

construction employer for a violation of a part 1910 standard, to effectuate the 

purposes of the OSH Act. 

"Incorporation of General Industry Safety and Health Standards Applicable to 

Construction Work," 58 Fed. Reg. 35,076, 35,076 (1993). 

On February 9, 1979, to promote better public understanding ofOSHA's 

construction hazard enforcement policy, the Secretary published a notice in the Federal 

Register listing the entire text of29 C.F.R. Part 1926, along with certain general industry 

standards which she had identified as applicable to construction work. OSHA, Parts 

6 
1926, 1910, "ldenti fication of General Industry Safety and Health Standards (29 CFR 

Part 1910) Applicable to Construction Work," 44 Fed. Reg. 8,577, 8,577 ( 1979). Jn this 

notice, the Secretary specifically identified 29 C.F.R. § 1910.151 ( c) as one of these part 

1910 standards applicable to construction work. "Identification," 44 Fed. Reg. at 8,589. 

The Secretary also noted that the identification of these applicable general industry 

standards was the first step in her long-range program of consolidating all the regulations 

applicable to construction work in a single comprehensive set of construction regulations 

in part 1926. Id. at 8,577. 

On June 30, 1993, at the request of both labor and management groups, OSHA 

published a single volume of regulations applicable to the construction industry, 

incorporating all those general industry requirements, including§ 1910.151(c), that the 

agency had previously detennined were applicable to construction employment. 

"Incorporation of General Industry Standards," 58 Fed. Reg. at 35,076, 35,084, 35,305. 

This consolidation provided a "more comprehensive compilation of applicable safety and 

health standards," reducing the need for construction employers and employees to consult 

both parts I 910 and 1926 to identify applicable standards. Id. at 35,076. As part of this 

effort, § I 9 I0.151 (c), which had long been applicable to construction employment, was 

given its own part 1926 designation, § l 926.50(g).5 "Incorporation," 58 Fed. Reg. at 

35,084, 35,305. Section 1926.SO(g) is textually identical to its general industry and 

Walsh-Healey Act sources,§§ !9I0.151(c) and 41C.F.R.§5~204.6(c). 

5 Although the Secretary made every effort to identify all applicable general industry provisions 

in this notice, she acknowledged that other part 1910 provisions may also be applicable, and she 

set up a special procedure to address any such eventualities. 58 Fed. Reg. at 35,077. 

7 
Pursuant to § 1911.5, the Secretary expressly made a good cause finding that she 

was exempt from the notice-and-comment rule-making requirements of section 4 of the 

Administrative Procedure Act ("APA"), 5 U.S.C. § 553, and section 6(b) of the OSH Act, 

29 U.S.C. § 655(b). "Incorporation," 58 Fed. Reg. at 35,077. This finding stated that 

notice-and-comment rule-making was unnecessary because the incorporation did not 

modify or revoke existing rights or obligations or create new ones, but simply provided 

additional information on the existing regulatory burden. Id. 

THE ALJ'S DECISION 

The ALJ found that OSHA's 1993 codification of the "quick drenching" 

requirement as § 1926.50(g) of part 1926 was a substantive change requiring notice-andcomment procedures because the construction standards in part I 926 had not previously 

contained this requirement. ALJ Dec. 8. The judge acknowledged that before the 1993 

codification of§ I 926.50(g), the "quick drenching" requirement in § I 910.151 (c) could 

have applied to construction employers. ALJ Dec. 9 ("While 29 C.F.R. § 1910.151 (c), a 

general industry standard, contained this requirement for quick drenching facilities, its 

terms may or may not apply to specific construction work"). The judge reasoned, 

however, that "[b ]y moving the ["quick drenching"] requirement into the construction 

standard, there becomes a presumption ofapplicability to construction work that 

otherwise does not exist for provisions contained in general standards in Part 1910." Id. 

Moreover, the judge stated that the codification of the "quick drenching" requirement as a 

construction standard would make the affirmative defense of infeasibility more difficult 

for the employer to prove. Id. Thus, the judge concluded that the codification of 

8 
§ l 926.50(g) had a substantial impact on private parties engaged in construction activity 

and required a proposed rule subject to notice and comment. Id. 

SUMMARY OF THE ARGUMENT 

Section 6(a) of the OSH Act authorized the Secretary to extend the coverage of the 

Walsh-Healey Act "quick drenching" standard, 41 C.F.R. § 50.204.6(c), to construction 

employers without notice-and-comment rule-making. Section 6(a) expressly exempted the 

Secretary from APA rule-making requirements in ordering her to adopt established federal 

standards "as soon as practicable" within two years of the effective date of the Act. The 

legislative history of section 6(a) indicates 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. The Secretary implemented this statutory purpose in promulgating 29 C.F.R. 

§ 1910.11 (a), expressly adopting and extending the applicability of established standards "to 

every employee, employer and employment covered by the Act." Both the courts of appeals and 

the Commission have long recognized 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. Thus, section 6(a) permitted the Secretary's summary 

extension of the Walsh-Healey Act quick drenching standard from manufacturing employees to 

construction employees. 

The ALJ erred in finding that the Secretary's adoption of the construction quick 

drenching provision, 29 C.F.R. § l 926.50(g), was a substantive change requiring notice-andcomment rule-making. The Secretary adopted the Walsh-Healey Act "quick drenching" 

9 
standard, 41 C.F.R. § 50.204.6(c), an established federal standard, as an OSHA standard of 

general application under section 6(a) of the Act, codified at 29 C.F.R. § 1910.15 l(c). As a 

result, § 1910. l 5 l(c) became applicable "to every employer, employee, and employment covered 

by the Act," § ! 910.11 (a), including construction employees exposed to injurious corrosive 

materials. Since the incorporation of the quick drenching provision into the construction 

standard at § 1926.SO(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. 

Assuming the Commission finds § 1926.SO(g) to be invalid, declaratory relief is not 

appropriate because it would not serve a useful purpose. Every purpose that Kiewit claims 

would be served by declaratory relief - resolution of this controversy, removal of uncertainty 

about the company's future compliance obligations, and clarification of the status of the cited 

provision - would also be achieved by a judgment that the provision is invalid. Accordingly, 

such relief should be denied. 

ARGUMENT 

!. The Secretary Had Authority under Section 6(a) of 1he OSH Ac1 To Extend the 

Coverage of the Walsh-Healey Act "Quick Drenching" S1andard to Cons/ruction 

Employers Without Notice-and-Comment Rule-Making. 

Section 6(a) of the OSH Act, its legislative history, and the interpretive case law 

all demonstrate that the Secretary had authority to extend the coverage of the WalshHealey Act "quick drenching" standard to construction employers without notice-andcomment rule-making when she adopted that established federal standard as an 

occupational safety or health standard. Section 6(a) expressly exempted the Secretary 

from APA rule-making requirements (chapter S oftitle 5 of the U.S. Code) in ordering 

JO 
her to adopt established federal standards ''as soon as practicable" within two years of the 

effective date of the Act. 29 C.S.C. § 655(a). 

Further, the legislative history makes it clear 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. Congressional debate revealed that: 

(I) the heaviest losses of the over 7 million annual occupational injuries were in 

construction work, 116 Cong. Rec. 37,317, 37,345 (1970) (statement of Sen. Williams), 

reprinted in Legislative History of the OSH Act off 970, at 411, 444; and 

(2) at least 11 million workers were not protected by federal statutes or standards, 

and at least 80 million were underprotected, 116 Cong. Rec. 38,366, 38,388 (1970) 

(statement of Rep. Gaydos), Legislative History, at 977, 1036. 

Accordingly, the Senate Labor and Public Welfare Committee reported that the 

Williams bill, S. 2193, the bill that passed the Senate, "provides for the issuance in 

similar fashion [i.e., as rapidly as possible and without notice-and-comment rule-making] 

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." S. Rep. No. 91-1282, at 6 (1970), Legislative History at 

146. Similarly, the Steiger-Sikes bill, H.R. 19200, the bill that passed the House, also 

provided for immediate promulgation of existing federal standards, without invoking 

APA procedures, to provide immediate protection to workers. 116 Cong. Rec. at 38,367-

68, Legislative History at 981-83 (statement of Rep. Anderson). 

11 

I 

t 

t 
i 

I 

i 

' i 

I 

' 

I 

l 

i 

l 

I 

I 

l 

1 

j 

l 

j 

I 

I 

I 

l 

j 

I 

1 

l 

I 

! 

The case law interpreting section 6(a) of the OSH Act reflects this Congressional 

purpose of expanding the scope of the established federal standards to provide immediate 

protection for uncovered workers. Both the courts of appeals and the Commission have 

long recognized that, in adopting established federal standards as OSH Act standards, the 

Secretary was not required to adopt the source standards' scope and application limits. 

Thus. the Sixth Circuit has held that "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." Diebold, Inc. v. Marshall, 

585 f.2d 1327. 1332 n.6 (6th Cir. 1976). 

The Tenth Circuit specifically applied this principle to the Walsh-Healey Act 

standards, noting that the very purpose of adopting established standards was to extend 

protection to workers who had not been covered by the source standards: "Congress 

itself adopted the Walsh-Healey standards as occupational safety and health standards of 

general application .... Indeed, the principal purpose to be served by adopting standards 

established under previous federal statutes as standards of the Act was to extend 

protection to many workers who had not been covered by previous standards." Lee Way 

Motor Freight. Inc. v. Secretary, 511 f.2d 864, 869 (10th Cir. 1975)(emphasis added). 

In a long line of cases, the Commission has also held, based on the legislative 

history of section 6(a) of the OSH Act, that Congress authorized the Secretary to expand 

summarily the scope of established federal standards to employers not originally covered 

by them. Thus, in Am. Can Co., 10 BNA OSHC 1305, 1310-1313 (No. 76-5162, 1982) 

(consolidated), the Commission ruled that the Secretary had not impermissibly omitted 

12 
the scope and application provisions of the Walsh-Healey Act noise standard at 41 C.F.R. 

§50.204.l(a) and (c) in adopting that established standard under section 6(a) of the OSH 

Act. The Commission found that the Secretary's changes to the source standard were 

pennissible without notice-and-comment rule-making because Congress created a very 

different enforcement scheme in the OSH Act from that established in the Walsh-Healey 

Act, and Congress's purpose in the OSH Act was to supersede the Walsh-Healey Act 

statutory scheme with a more effective one. Am. Can, 10 BNA OSHC at 1312; see OSH 

Act,§ 4(b)(2) ("The safety and health standards promulgated under the ... Walsh-Healey 

Act ... are superseded on the effective date of corresponding standards, promulgated 

under this Act, which are determined by the Secretary to be more effective"). 

Similarly, in Bechtel Power Corp., 4 BNA OSHC 1005, 1008 (No. 5064, 1976), 

aff'd, 548 F.2d 248 (8"' Cir. 1977), the Commission held that the sections 4(b)(2) and 

6(a) of the OSH Act authorized the Secretary to expand the coverage of the Construction 

Safety Act standards that she adopted as established federal standards to employers other 

than contractors and subcontractors without rule-making: "[t]he legislative history of the 

[OSH] Act makes clear that in adopting Construction Safety Act standards as established 

Federal standards under [the OSH Act], the Secretary was empowered by sections 4(b) 

(2) and 6(a) to extend their coverage without resort to formal rulemaking procedures." 

Bechtel, 4 BNA OSHC at I 008 (quoting S. Rep. No. 91-1282, at 6 ( 1970), Legislative 

History of 1970, at 146, quoted supra pp. 4-5). 

Likewise, in Brown & Root, Inc., 9 BNA OSHC 1407 (No. 77-805, 1981), the 

Commission upheld the Secretary's omission of'the coverage limitations of the 

Longshoremen's and Harbor Workers' Compensation Act ship repair standards she 

13 
l 

I 

l 

I 

I 

I 

I 

l 

' l 

1 

I 

l 

' ' ! 

' ! 

adopted as established federal standards under section 6(a). Citing Bechtel, the 

Commission held that the OSH Act empowered the Secretary to extend the coverage of 

the Longshore Act standards (which excluded the ship's crew and work supervised by the 

ship's officers) to all employees engaged in ship repair or related employment. Id. at 

1408-09. The Commission concluded that the ALJ erred by determining the coverage of 

the adopted Longshore Act standards by reference to an antecedent standard instead of 

the broader OSH Act coverage standard, which superseded it. Id. at 1409. 

The Commission has also sustained the Secretary's authority to change the scope 

and application provisions of the source standards she adopted as established federal 

standards without notice-and-comment rule-making in other cases. See Lee Way Motor 

Freight, Inc., I BNA OSHC 1689, 1691(No.1105, 1974) (scope of material handling 

and storage Walsh-Healey standard adopted as OSH Act standard under section 6(a) 

properly expanded to cover transportation companies), ajf'd, 511 F.2d 864, 869 (I otl• Cir. 

1975); Coughlan Constr. Co., 3 OSHC 1636, 1637-38 (Nos. 5303, 5304, 1975) (scope of 

Construction Safety Act excavation standard adopted as section 6(a) OSH Act standard 

validly expanded from federally supported construction to all construction); see also 

Underhill Constr. Corp., 2 BNA OSHC 1556, 1557-58 (No. 1307, 1975), ajf'd, 526 F.2d 

53 (2d Cir. 1975) (Secretary not required to adopt the effective dates of Construction 

Safety Act standards promulgated under section 6(a) of the OSH Act, but could establish 

new effective dates). Thus, as the above discussion demonstrates, section 6(a) of the 

OSH Act, its legislative history, and the interpretive case law all establish the Secretary's 

authority to extend the coverage of the Walsh-Healey Act "quick drenching" standard to 

construction employers without notice-and-comment rule-making. 

14 
I 

l 

I 

l 

I 

j 

! 

I 

! 

I 

In its motion to dismiss to the ALJ, Kiewit argued that the "quick drenching" standard, 

adopted under section 6(a), 29 C,F.R. § 1910.15l(c), is inapplicable to construction work 

primarily on the grounds that: 

(I) the provision's source statute, the Walsh-Healey Act, and source standard, 41 C.F.R. 

§ 50-204.6(c), did not apply to construction work, and the legislative history of section 6(a) of 

the OSH Act shows that Congress did not extend the source standard to apply to construction 

work, but only to all covered manufacturing work affecting interstate commerce; and 

(2) the regulatory history of the Construction Safety Act standards, the source standards 

for part 1926, shows that the Secretary determined that 41 CF.R. § 50-204.6(c) should not be 

applied to the construction industry. 

Kiewit Motion to Dismiss at 16-25, 42-46. 

These arguments are without merit. Kiewit's first argument that the quick drenching 

provision's source statute and standard did not apply to construction is irrelevant because the 

OSH Act was enacted to exlend worker protections in response to inadequate existing remedies, 

Alias Roofingv. OSHRC, 430 U.S. 442, 444-45 (1977), not to maintain the inadequate coverage 

of the status quo. As the Commission found in Am. Can, I 0 BNA OSHC at 1312, Congress 

created a very different enforcement scheme in the OSH Act from that established in the WalshHealey Act, and Congress's purpose in the OSH Act was to supersede the Walsh-Healey Act 

statutory scheme with a more effective one. Id.; see OSH Act, § 4(b)(2) ("The safety and health 

standards promulgated under the , .. Walsh-Healey Act, .. are superseded on the effective date 

of corresponding standards, promulgated under this Act, which are determined by the Secretary 

to be more effective"). 

15 
furthermore, the Secretary implemented section 6(a) of the OSH Act with a regulation, 

29 C.f .R. § 1910. l l(a), that made adopted established federal standards, such as § 191OJ51 (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. § 19JO.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). Both the 

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

4 BNA OSHC I 005, I 008 (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 (81

h 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"). Thus, the 

Secretary's interpretation that section 6(a) of the OSB Act authorized her to extend the scope of 

the Walsh-Healey Act quick drenching standard to construction work is reasonable and is 

entitled to deference. Chevron. U.SA, 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).6 

6 In its reply to the Secretary's response to its motion to dismiss, Kiewit claims that the 

Secretary did not show her statutory authority to make Walsh-Healey standards applicable to 

construction work through § 1910. 11 (a). Kiewit Reply in Support of Motion to Dismiss at 5. 

Kiewit also asserts that, on its face, § I 910.11 (a) only eliminated established federal standards' 

restrictions to federal contractors, and does not extend the scope of these standards to 

substantively different work. Kiewit Reply at 6. Both claims are unwarranted. As shown above, 

the Secretary's authority to make established federal standards applicable to all employers, 

16 
The legislative hi~tory of section 6(a) also indicates that Congress intended that 

established federal standards be adopted as OSH Act standards without notice-and-comment 

rule-making as quickly as possible and extended to additional employees who were not under the 

source standards' protection. See supra pp. 4-5 (citing applicable legislative history). Thus, the 

OSH Act mandate to adopt and expand the coverage of established federal standards without 

notice-and-comment rule-making as quickly as possible trumps Kiewit's arguments that the 

Walsh-Healey Act quick drenching standard did not apply to construction, and that the source 

standards for the OSH Act construction standards did not include such a provision. Indeed, it is 

precisely because these source standards did not provide needed protections for construction 

workers exposed to injurious corrosive materials that the Secretary's application of the quick 

drenching provision to the construction industry fulfilled the statutory mandate. 

Kiewit's contrary interpretation of the legislative history of section 6(a) is without merit. 

On Kiewit's view, the only expansion of the scope of the established federal standards adopted 

as OSH Act standards that the legislative history authorizes without rule-making is an extension 

of the scope of, e.g., Walsh-Healey Act standards from federally supported manufacturing work 

to all covered manufacturing work affecting interstate commerce, but not to construction work.7 

Kiewit Motion to Dismiss at 43-46 (quoting S. Rep. No. 91-1282, at 6 (1970), Legislative 

employees and employments covered by the Act has been upheld by the Commission and the 

Eighth Circuit. As also noted above, see supra, p. 14. the Commission and the Tenth Circuit 

upheld the Secretary's authority under section 6(a) to extend the scope of a material handling and 

storage Walsh-Healey Act standard to transportation work, a substantively different type of 

work. Lee Way Motor Freight, Inc., I BNAOSHC 1689, 1691(No.1105,1974)(scopeof 

material handling and storage Walsh-Healey standard adopted as OSH Act standard under 

section 6(a) properly expanded to cover transportation companies), aff'd, 511 F.2d 864, 869 (lO'" 

Cir. 1975). 

7 Section 3(5) of the OSH Act exempts the U.S. government, excluding the Postal 

Service, and state governments, including political subdivisions, from coverage under the Act. 

29 u.s.c. § 652(5). 

17 
History 141, 146, quoted supra, pp. 4-5). Kiewit claims that only its narrow interpretation is 

consistent with the Senate report's expectation that the adopted standards would be familiar to 

industry and would "have already been subjected to the procedural scrutiny mandated by the law 

under which they were issued." Kiewit Motion at 44-45 (quoting S. Rep. No. 91-1282, at 6, 

Legislative History at 146). In further support of its restrictive reading of the scope extension of 

source standards permitted by section 6(a), Kiewit claims that the House rejected a provision in 

H.R. 16785, the Daniels bill, that (according to Kiewit) would have expressly authorized the 

Secretary's broader interpretation. Kiewit Motion at 46 (quoting H.R. 16785, 91'' Cong.§ 6 

(1970)) ("The Secretary shall ... promulgate ... any established Federal standard then in effect 

(not limited to its present area of application) ... "). 

Kiewit's reading of the legislative history is not controlling. The Secretary's 

interpretation that the statute authorized him to adopt established Walsh-Heally standards as 

OSHA standards of general application is plainly reasonable, even if not the only possible 

reading. Bechtel, 4 BNA OSHC AT I 008, Lee Way Motor Freight, 511 F.2d at 869. The 

Secretary's construction is consistent with the clear Congressional intent to extend immediate, 

expanded protection to employees not under the protection of existing federal standards. A 

contrary result does not follow simply because some employers subject to the established federal 

industry in general would be familiar with the established federal standards, not that every I 

standards' expanded application would not be familiar with their substantive requirements. 

There is no indication in the legislative history that Congress expected anything more than that 

specific industry, such as construction, would necessarily be familiar with every established 

federal standard that applied to it. The quick drenching provision met that expectation, as well as 

the expectation that it would have already been subjected to the procedural scrutiny required by 

18 
the statute under which it was issued, by being promulgated as a Walsh-Healey Act standard 

through notice-and-comment rule-making. 

Moreover, the House's rejection of the Daniels bill, H.R. 16785, allegedly authorizing the 

Secretary's broad interpretation of the expanded scope of adopted established federal standards, 

does not show that Congress rejected the Secretary's interpretation. There was never an up or 

down vote on the scope provision in question. Instead, the House voted to substitute H.R. 

19200, the Steiger-Sikes bill, for the Daniels bill, H.R. 16785, 116 Cong. Rec. 38,697, 38, 715, 

38, 723-24 (1970), Legislative History, 1057, 1091-92, 1112, 1117, which, unlike the SteigerSikes bill, required adoption of established federal standards as interim (not permanent) 

standards and required a public hearing and notice-and-comment rule-making to promulgate a 

standard. H.R. 16785, 9l"Cong. § 6, legislative His10ry, 721, 727; H.R. 19200, 9l"Cong. § 

6(b), Legislative History 763, 770. Therefore, one cannot say whether the House rejected the 

Daniels bill because of these latter two provisions or because of its supposedly expanded scope 

provision, or because of some combination of the three. 8 One cannot even say whether the 

parenthetical modifying "established federal standard" in the Daniels bill, i.e., "(not limited to its 

present area)," made the scope of the standard broader than the corresponding provision in the 

Steiger-Sikes bill, which lacked this parenthetical, or whether the parenthetical merely clarified, 

without changing, the scope of the provision. Thus, Kiewit's legislative history argument does 

not prove that Congress rejected the Secretary's interpretation of section 6(a). 

8 It is also possible that the House rejected the Daniels bill for other reasons, such as the 

fact that it assigned the power to adjudicate citation contests to the Secretary whereas the 

Steiger-Sikes bill created an independent occupational safety and health appeals commission for 

that purpose. H.R. 16785, 91" Cong.§ I l(b), H.R. 19200, 91" Cong.§§ 10-11, Legislative 

History 740-41, 785-96. The bitter dispute over this issue seriously jeopardized the enactment of 

the OSH Act. S. Rep. No. 91-1282, at 55 (1970) (individual views of Sen. Javits), Legislative 

History 141, 194. 

19 
l 

I 

l 

l 

l 

j 

j 

I 

I 

I 

Kiewit's second argument - that the general industry provision§ 1910.15 l(c) does not 

apply to construction work because the Secretary supposedly determined in the rule-making for 

the Construction Safety Act standards, the source standards for part 1926, that the quick 

drenching provision should not be included - is invalid. In the first place, contrary to Kiewifs 

assertion, Kiewit Motion to Dismiss at 21-25, there is nothing in the regulatory history showing 

that the Secretary determined that a "quick drenching facilities" provision should not be applied 

to the construction industry. Instead, the passages that Kiewit quotes show only the absence of a 

quick drenching provision from the final rule. A provision can be left out of a rule for many 

reasons, including accidental omission, but mere absence is not an affirmative determination that 

the provision is inappropriate. 

In any case, the Secretary's determination whether the quick drenching provision should 

be included as a Construction Safety Act standard is not relevant to the applicability of the 

provision to construction employers under the OSH Act. Congress determined in the OSH Act 

that established federal standards, like the Walsh-Healey Act and the Construction Safety Act 

standards, provided inadequate coverage of workers, and ordered the Secretary to supersede 

these standards as soon as possible with more effective OSH Act standards that covered more 

workers, especially construction workers. Kiewit' s argument that the required extension of these 

necessary protections under the OSH Act should be barred by the restrictions of ineffective 

predecessor standards would thwart the statutory purpose of providing immediate coverage for 

unprotected workers. 

20 
II. The All Erred in Finding That the Secretary's Adoption of the Construction Quick 

Drenching Provision Was a Substanlive Change Requiring Nollce-and-Commenl RuleMaking. 

The ALJ committed a fundamental legal error in concluding that the mere codification of 

the general industry "quick drenching" requirement, 29 C.F.R. § 1910.15l(c), into part 1926 

substantively changed the legal rights of the parties and so required notice and comment 

procedures. As an "established federal standard," in effect on April 28, 1971, the Walsh-Healey 

Act "quick drenching facilities requirement," 41 C.F.R. § 50-204.6(c), was adopted as an OSHA 

standard under § 6(a) of the Act and codified at 29 C.F.R. § 19 l 0.151 (c). "Established Federal 

Standards," 36 Fed. Reg. at 10,601. As a result,§ 1910.l51(c) became applicable "with respect 

to every employer, employee, and employment covered by the Act." 29 C.F.R. 1910.1 l(a) 

(emphasis added); see also 29 C.F.R. § 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"). Therefore, since no construction standard pre-empted § 191O.l51 (c), that 

established federal standard applied to construction work from its effective date as an OSH Act 

standard. 

Both the Commission and the courts of appeals have upheld the Secretary's statutory 

authority under section 4(b)(2) and 6(a) of the OSH Act to adopt established federal standards as 

occupational safety and health standards of general application without rule-making. In Lee Way 

Motor Freight, Inc .. 1 BNA OSHC at 1691. ajf'd, 511 F.2d 864, 869 (IO'h Cir. 1975), the 

Commission held that 29 C.F.R. § 1910.22(c), a walking-working surface standard requiring 

covers or guardrails for unguarded pits, applied to the employer's transportation operations even 

though the standard's Walsh-Healey Act source standard was headed "Material handling and 

21 
storage," and did not apply to transportation companies. The Commission held, and the Tenth 

Circuit, affirmed, that the standard was applicable because "Congress itself adopted the WalshHealey standards as occupational safety and health standards of general application," applicable 

to industry generally. Lee Way, 1 BNA OSHC at 1691, aff'd, 511F.2d864, 869 (10th Cir. 1975); 

see also Coughlan Constr., 3 OSHC at 1638 (Congress authorized the Secretary to promulgate 

established federal standards, including Construction Safety Act standards, as standards of 

general applicability without further rule-making proceedings). Similarly, in Bechtel, 4 BNA 

OSHC I 005, 1008 (No. 5064, 1976), ajf'd, 548 F .2d 248 {81

h Cir. 1977), the Commission held 

that the Secretary acted within his statutory authority under sections 4(b)(2) and 6(a) of the OSH 

Act in adopting 29 C.F.R. § 1910.11 to extend established federal standards to every covered 

place of employment. 

The Secretary specifically identified § 1910.151 ( c) as one of the general industry 

requirements applicable to construction work in a list published in the Federal Register on 

February 9, 1979, over fourteen years before the provision was incorporated into part 1926. 

"Identification," 44 Fed. Reg. at 8,589. The Secretary explained that the identification of these 

applicable provisions was the first step in her long-range project of consolidating all of the 

construction requirements in part 1926. Id. at 8,577. 

The Secretary's 1993 Federal Register notice giving the "quick drenching" requirement 

its own part 1926 designation did not change the rights and obligations of construction 

employers in any way. The 1993 notice simply consolidated in a single volume all of the 

regulations, whether from part 1910 or part 1926, that OSHA had previously determined were 

applicable to construction. "Incorporation," 58 Fed. Reg. at 35,076. The judge's conclusion that 

this purely ministerial action created "a substantial impact on private parties," ALJ Dec. at 9, is 

22 

I 

I 

' ! 

1 

I 

I 
plainly wrong. Contrary to the judge's unsupported and entirely unexplained assertion, the 

designation of the "quick drenching" requirement as a part 1926 standard did not lessen the 

burden on the Secretary to prove the applicability of the standard in an enforcement proceeding. 

ALJ Dec. at 9. In any case involving an alleged violation of a part 1926 standard, the Secretary 

must prove that the employer was actually engaged in construction work, as defined in 29 C.F.R. 

1910. 12(b), as an element of her case in chief. See B.J. Hughes, Inc., JO BNA OSHC 1545, 

1546-47 (No. 76-2165, 1982) ("We have previously stated that the construction standards only 

apply to actual construction work or to related activities that are an integral and necessary part of 

construction work."). There is no "presumption of applicability" for construction standards. 

ALJ Dec. at 9. If the Secretary fails to show that the employer was actually engaged in 

construction work, a citation for violation of a part 1926 standard must be vacated. Hughes, 10 

BNA OSHC at 1547 (§ l 926.28(a) did not apply to employer's cement servicing operations 

where the Secretary did not show that its oil drilling process constituted construction). 

The ALJ was equally off base in stating that "once these [part 191 O] requirements are 

incorporated into the vertical industry specific construction standards, feasibility of compliance 

becomes more difficult or even impossible for a cited employer to challenge." ALJ Dec. at 9. 

There is nothing in the Act or Commission precedent to suggest that the affirmative defense of 

infeasibility is more difficult for employers to establish for violations of construction standards 

than for other standards. In short, the judge's conclusion that publication of the 1993 

Incorporation notice substantively changed the rights and obligations of private parties has no 

basis in fact or law. The Secretary properly made a good cause finding that she was exempt 

from notice-and-comment rule-making requirements because the incorporation did not modify or 

23 
revoke existing rights or obligations or create new ones, but simply provided additional 

information on the existing regulatory burden. "Incorporation," 58 Fed. Reg. at 35,077. 

In its motion to dismiss to the ALJ, Kiewit raises two primary objections, one procedural 

and one substantive, to the Secretary's 1993 incorporation of the quick drenching requirement 

into part 1926. Kiewit argues first that the Commission cannot rely on section 6(a) of the OSH 

Act as the basis for the Secretary's adoption of§ I 926.50(g) because the Secretary did not offer 

that rationale in his incorporation of that provision. Kiewit Motion at 53. Kiewit also contends 

that the Secretary's position that adopted established federal standards are standards of general 

application would lead to the absurd consequence that standards for one industry could be 

applied, without notice-and-comment rule-making, to completely unrelated industries, such as 

manufacturing standards to construction, construction standards to agriculture, and maritime 

standards to manufacturing. Id. at 54-56. 

Kiewit's objections are unwarranted. In the first place, the Secretary's adoption of§ 

l 926.50(g) was not based on section 6(a). Section 6(a) was the statutory basis for the 

promulgation of§ 19 I0.151 ( c }, which applied as a standard of general application "to every 

employer, employee and employment covered by the OSH Ac." 29 C.F.R. § 1910.1 l(a). The 

promulgation of§ l 926.50(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. Moreover, the alleged 

absurdity of Kiewit's attempted reductio ad adsurdum never materializes because standards have 

content restrictions imposed by their terms. The general industry quick drenching requirement, 

for example, applies only where employees "may be exposed to injurious corrosive materials." § 

24 
1910.lSl(c). As such, the requirement applies to industries where the possibility of such 

exposure exists, and does not apply where such exposure is not possible. 

lll. In the Event That The Commission Finds§ 1926.50(g) Invalid, Declaratory 

Relief Would Serve No Useful Purpose and Should Be Denied. 

Declaratory relief is available e under the Administrative Procedure Act. 5 U.S.C. § 

554(e), which provides that an agency "in its sound discretion, may issue a declaratory order to 

terminate a controversy or remove uncertainty." Id. Declaratory relief is appropriate only when: 

( l) the judgment will serve a useful purpose in clarifying and settling the legal relations 

at issue; or 

(2) it will terminate and afford relief from the uncertainty, insecurity and controversy 

giving rise to the proceedings. 

MarylandCas. Co. v. Rosen, 445 F.2d 1012, 1014 (2d Cir. 1971). "A declaratory judgment is 

inappropriate solely to adjudicate past conduct." Gruntal & Co. v. Steinberg, 837 F. Supp. 85, 

89 (D. N.J. 1993). 

Jn two requests for declaratory relief, its motion to dismiss and its cross-petition for 

discretionary review, Kiewit has been unable to identify a single useful purpose that would be 

served by a declaratory order in this case that would not be achieved if the Commission finds the 

challenged standard invalid. In its motion to dismiss, Kiewit claims that a declaratory order that 

29 C.F.R. i 926.50(g) is invalid would terminate this controversy, remove uncertainty about the 

company's future compliance obligations, and clarify the status of a frequently cited standard. 

Kiewit's Motion to Dismiss at 64. Kiewit does not explain, however, why, a judgment that the 

cited standard is invalid would not achieve these purposes. Jn its cross-petition, Kiewit claims 

that the ALJ's denial of declaratory relief was wrong, but does not point to a useful purpose that 

such relief would serve. Kiewit's CPDR at 3-4. 

25 

' 1 

i 

i 

I 

I 

I 
In Granite City Terminals Corp., 12 BNA OSHC 1741, 1748 (No. 83-882-S, 1986), after 

vacating the alleged violation, the Commission declined to issue a declaratory order stating that 

the company's current use ofa clam shell bucket with safety belt protection was in compliance 

with 29 C.F.R. § I 918.23(b}. The Commission found that such an order would serve no useful 

purpose since the question whether use of a clam shell bucket with a safety belt complied with 

the cited standard was moot. Granite City, 12 BNA OSHC at 1748. See also 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 ifthe Commission should strike down the provision. 

Alternatively, such relief would not apply ifthe provision is upheld. Accordingly, declaratory 

relief would serve no useful purpose and should be denied. 

26 
CONCLUSION 

For these reasons, the Commission should uphold the validity of§ J 926.50(g), and 

remand this case to the AU for decision on the merits. 

May 14, 2013 

M. PATRICIA SMITH 

Solicitor 

JOSEPH M. WOODWARD 

Associate Solicitor for 

Occupational Safety 

and Health 

CHARLES F. JAMES 

Counsel for Appellate Litigation 

Is! 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. 202 I0-0001 

(202) 693-5493 

27 

I 

l 

I 

I 

I 

I 

I 

t 

I 

I 

l 

I 

I 
CERTIFICATE OF SERVICE 

I hereby certify that, on this ~--day of May 2013, I served a copy of the preceding 

Brief for 1he Aeling Secrelary of Labor by fax and by e-mail on: 

Arthur G. Sapper, Esq. 

Fax: (202) 756-8087 

E-mail: asapper@mwe.com> 

Isl Scott Glabman 

SCOTT GLABMAN 

Attorney for the Secretary of Labor 

I 

!