Kiewit Power Constructors Co. (Commission decision, July 23, 2020)

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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