Kiewit Power Constructors Co. v. Sec'y of Labor

• Decision Date: 15 May 2020
• Docket Number: C/w 18-1317,No. 18-1282,18-1282
• Citation: 959 F.3d 381
• Parties: KIEWIT POWER CONSTRUCTORS CO., Petitioner v. SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

959 F.3d 381

KIEWIT POWER CONSTRUCTORS CO., Petitioner

v.SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR, Respondent

No. 18-1282

C/w 18-1317

United States Court of Appeals, District of Columbia Circuit.

Argued October 10, 2019

Decided May 15, 2020

Scott Glabman, Senior Appellate Attorney, U.S. Department of Labor, argued the cause for petitioner Secretary of Labor. With him on the briefs were Edmund C. Baird, Associate Solicitor for Occupational Safety and Health, and Charles F. James, Counsel for Appellate Litigation. Brian A. Broecker and Louise M. Betts, Attorneys, entered appearances.

Victoria L. Bor and Esmeralda Aguilar, Washington, DC, were on the brief for amicus curiae North America's Building Trades Unions in support of petitioner, Secretary of Labor, U.S. Department of Labor, seeking reversal of OSHRC's final order.

Arthur G. Sapper, Washington, DC, argued the cause for respondent Kiewit Power Constructors Co. With him on the briefs were John F. Martin and Melissa A. Bailey, Washington, DC.

Bradford T. Hammock was on the brief for amicus curiae National Association of Home Builders in support of Kiewit Power Constructors Co. seeking affirmance of OSHRC's final order.

Before: Henderson, Griffith and Millett, Circuit Judges.

Karen Lecraft Henderson, Circuit Judge:

The Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. §§ 651 et seq. , directs the Secretary (Secretary) of the United States Department of Labor (DOL) to issue safety and health standards for the protection of American workers, id. § 651(b)(3). To expedite the development of national regulations, section 6(a) authorized the Secretary, for two years after the OSH Act's enactment, to promulgate then-current federal safety standards without regard to formal rulemaking procedures. Id. § 655(a). Relevant here, 41 C.F.R. § 50-204.6(c), which requires quick-drenching eyewash facilities for workers exposed to corrosive materials, was among the many preexisting standards adopted pursuant to this limited rulemaking exemption. See 29 C.F.R. § 1910.151(c). Pre-1971, § 50-204.6 had applied only to manufacturers and suppliers working under federal contracts but, after its adoption under the OSH Act, the Secretary began to enforce the quick-drenching provision against employers in other industries, including construction. In 1993, without notice and comment, the quick-drenching provision was formally designated as a construction safety standard. See 29 C.F.R. § 1926.50(g).

In 2011 the Occupational Safety and Health Administration (OSHA) cited Kiewit Power Constructors Co. (Kiewit) for a "serious" violation of § 1926.50(g). Kiewit contested the citation, arguing that the quick-drenching provision was invalidly applied to the construction industry without notice-and-comment rulemaking. An administrative law judge (ALJ) agreed, Kiewit Power Constructors Co. , No. 11-2395 (OSHRC Dec. 24, 2012) (ALJ) [hereinafter ALJ Decision], as did the Occupational Safety and Health Review Commission (OSHRC or Commission), Kiewit Power Constructors Co. , 2018 O.S.H.D. (CCH) P 33689 (2018) [hereinafter OSHRC Decision ]. The Commission vacated Kiewit's citation but declined to issue a declaratory order declaring § 1926.50(g) ’s invalidity. The Secretary and Kiewit cross-petitioned for review. Because we conclude that the Secretary's interpretation of the OSH Act is reasonable and therefore entitled to deference from the Commission, we grant the Secretary's petition for review, deny Kiewit's and reverse the Commission's decision.

I.

A.

The OSH Act established a comprehensive regulatory scheme "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. § 651(b). Until then, workplace safety was addressed in a patchwork manner by federal and state regulations and, to a degree, employers’ voluntary efforts. See S. Rep. No. 91-1282, at 3–4 (1970). The measures were largely ineffective. In the four years preceding the Act's adoption, more Americans were killed at work than in the Vietnam War and the increasing human and economic cost of industrial hazards became a matter of serious national concern. See id. at 2.

A key deficiency of then-existing federal protections was that they did not extend to all employers. For example, safety standards promulgated pursuant to the Walsh-Healey Public Contracts Act of 1936, 49 Stat. 2036 (codified as amended at 41 U.S.C. §§ 6501 – 6511 ), applied only to manufacturers and suppliers operating under federal contracts, see 41 U.S.C. § 6502(4). Other labor laws similarly conditioned coverage on the existence of a federal nexus. The Contract Work Hours and Safety Standards Act, 76 Stat. 357, amended by—and popularly referred to as—the Construction Safety Act of 1969 (CSA), Pub. L. No. 91-54, 83 Stat. 96 (codified as amended at 40 U.S.C. § 3704 ), authorizes the regulation of contractors and subcontractors working on federally funded construction projects, see 40 U.S.C. § 3704(a)(1). These circumscribed scopes meant that, in a given industry, many workers remained unprotected even as others were covered by applicable federal standards.

The OSH Act aimed to close this coverage gap by facilitating the development of "uniformly applied" standards, S. Rep. No. 91-1282, at 1, to cover all "businesses affecting interstate commerce," 29 U.S.C. § 651(b)(3). The Secretary was therefore "authoriz[ed] ... to set mandatory occupational safety and health standards," id. , that "require[ ] 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," id. § 652(8).¹ The primary mechanism for establishing occupational safety and health (OSH) standards was set out in section 6(b), which requires the Secretary to "promulgate, modify, or revoke" any OSH standard in accordance with notice-and-comment rulemaking procedures. Id. § 655(b).

Alternatively, section 6(a) provided an expedited, albeit temporary, path for the issuance of standards. Although existing protective measures had failed to abate industrial risk adequately, there remained value in "establish[ing] as rapidly as possible national occupational safety and health standards with which industry is familiar." S. Rep. No. 91-1282, at 6. Thus, for a two-year period following the OSH Act's effective date, the Secretary was to, "as soon as practicable" and "[w]ithout regard to" the rulemaking procedures in section 6(b) or the Administrative Procedure Act (APA), 5 U.S.C. §§ 500 et seq. , promulgate as an OSH 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). A "national consensus standard" is one "adopted and promulgated by a nationally recognized standards-producing organization," following certain procedural safeguards. Id. § 652(9).² An "established Federal standard," by comparison, is "any operative occupational safety and health standard established by any agency of the United States ... or contained in any Act of Congress" as of the OSH Act's enactment. Id. § 652(10).

The Secretary soon invoked his section 6(a) authority and, excused from formal rulemaking, adopted scores of national consensus and established Federal standards as OSH standards. See National Consensus Standards and Established Federal Standards, 36 Fed. Reg. 10,466 (May 29, 1971). Part 1910 was added to Title 29 of the Code of Federal Regulations to house the new OSH standards. Id. Not all established Federal standards, however, were adopted into Part 1910 in the same manner. The CSA standards codified in Part 1926³ —promulgated a mere eleven days before the OSH Act's effective date—were incorporated by reference in Subpart B. See id. at 10,469 (adopting 29 C.F.R. § 1910.12 ). These new OSH standards remained tethered to the CSA standards "prescribed in [P]art 1926[,] ... apply[ing] ... according to the provisions thereof," although coverage was extended "to every employment and place of employment of every employee engaged in construction work." 29 C.F.R. § 1910.12(a). Subpart B also incorporated by reference standards issued pursuant to the Longshoremen's and Harbor Workers’ Compensation Act (LHWCA), 44 Stat. 1424 (1927) (codified as amended at 33 U.S.C. §§ 901 et seq. ), which covers employers operating on the navigable waters of the United States, 33 U.S.C. §§ 902(4), 941 ; see National Consensus Standards and Established Federal Standards, 36 Fed. Reg. at 10,469 (adopting 29 C.F.R. §§ 1910.13 – 1910.16 ).

The Walsh-Healey standards, however, were given new designations elsewhere in Part 1910. Relevant here, Walsh-Healey's "quick-drenching" eyewash standard, 41 C.F.R. § 50-204.6(c), was recodified at 29 C.F.R. § 1910.151(c), see National Consensus Standards and Established Federal Standards, 36 Fed. Reg. at 10,601.⁴ Although promulgation as distinct Part 1910 standards suggested that the original Walsh-Healey standards were to have a broader scope than those first promulgated under the CSA and LHWCA, their reach was far from clear. On the one hand, § 1910.5(c)(2) seemed to contemplate that the general standards in Part 1910, i.e., those derived from Walsh-Healey standards, were meant to fill in regulatory gaps left by particular standards, like the construction standards prescribed in Subpart B. See 29 C.F.R. § 1910.5(c)(2) ("[A]ny 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.") (emphasis added). On the other hand, § 1910.5(e) appeared to foreclose such a broad application, declaring that any OSH standard derived from a Walsh-Healey standard "is...