Kiewit Power Constructors Co.

Plain-English summary

OSHA cited Kiewit Power Constructors under the construction quick-drenching provision, 29 C.F.R. § 1926.50(g). An administrative law judge and then the Commission vacated the citation after concluding that the provision had not been validly promulgated for construction work. The D.C. Circuit reversed, holding that OSHA permissibly adopted and applied the provision to the construction industry under the OSH Act. The court returned the case for adjudication of the citation itself. Following the court's mandate, the Commission remanded the case to the chief judge for reassignment and further proceedings.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.50(g)
• Outcome: The case was remanded for a merits decision after the court upheld the standard's validity.
• Key point: Once the court held the quick-drenching provision valid for construction, the Commission had to address whether the employer violated it.

Full text (OSHRC public release)

KIEWIT POWER CONSTRUCTORS CO.,OSHRC Docket No. 11-2395

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket
No. 11-2395

KIEWIT POWER CONSTRUCTORS CO. ,

Respondent.

REMAND ORDER

Before: SULLIVAN , Chairman;
ATTWOOD
and LAIHOW ,
Commissioner s .

BY THE COMMISSION:

This case is on remand from the United States Court of Appeals for the
D.C. Circuit . Kiewit Power Constructors Co. v.
Sec ’ y of Labor ,
959 F.3d 381
( D.C.
Cir. 20 20 ). Former
Administrative Law Judge
Stephen J.
Simko , Jr. ,
granted Respondent’s motion to dismiss
and vacated
a citation
issued by the Occupational Safety and Health Administration ,
alleg ing
a violation of the construction “quick-drenching”
provision , 29 C.F.R. §   1926.50(g) . The j udge concluded that
this
provision , originally
adopted
pursuant to section 6(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   655(a),
was
later
“improperly promulgated
and added as a new [construction] standard”
without notice-and-comment rulemaking . Kiewit Power Constructors Co. ,
No. 11-2395, 2018 WL 4861361, at *37
(OSHRC Dec. 24, 2012) (ALJ
Decision & Order appended to Commission decision ) .

On review, the Commission
concluded , on different grounds,
that §   1926.50(g) “was invalidly promulgated
as a construction standard ” and
therefore
vacated the citation .
Kiewit Power Constructors Co. , 27 BNA OSHC 1445, 1454 (No. 11-2395, 2018)
( majority opinion ) . The
D.C. Circuit
reversed,
ruling that
the
original
adoption and subsequent
application of the quick-drenching provision to the construction industry
under section 6(a)
of the OSH Act was
permissible . 959 F.3d at 385, 406 .
The court, therefore,
remanded for adjudication on the merits of the citation.

The mandate in this case was issued on July 9, 2020. Accordingly ,
we
remand to the
Chief Administrative Law Judge
for
reassignment
and further proceedings consistent with the court’s opinion .

SO
ORDERED.

/s/               

James J. Sullivan, Jr.

Chairman

/s/               

Cynthia L. Attwood

Commissioner

/s/               

Amanda Wood Laihow

Dated:    July 23, 2020                Commissioner

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