OSHRC Agrees With Ogletree Deakins' Argument That Construction Eyewash Standard Is Invalid

On September 28, 2018, the independent Occupational Safety and Health Review Commission (OSHRC) agreed with Ogletree Deakins' argument that the Occupational Safety and Health Administration's (OSHA) standard requiring emergency eye-flushing and body-washing facilities on construction sites is invalid.

Ogletree Deakins (appearing through this writer) represented a construction company that allegedly had violated 29 C.F.R. § 1926.50(g), the eyewash and shower standard, because in OSHA's opinion the company's eyewash stations were not close enough to construction work using certain substances. The company disputed this and contested the citation. Among its arguments was that the construction eyewash standard had not been validly adopted.

After an administrative law judge agreed that the standard was invalid, OSHA appealed to the three OSHRC commissioners, after which the parties filed briefs and, unusual for the Commission, orally argued the case. The Commission, in a 2-1 decision, rejected OSHA's arguments and agreed with those of Ogletree Deakins that OSHA's construction eyewash standard was invalid.

Background

The background of the dispute is complex, but the issue itself is simply stated: when Congress authorized OSHA to adopt certain startup standards without notice-and-comment rulemaking, did it also authorize OSHA to change the standards by applying them to different industries—industries that never had an opportunity to comment on them?

When Congress passed the Occupational Safety and Health Act (OSH Act) in 1970, it wanted OSHA to get a running start on enforcement, so it authorized OSHA to adopt two kinds of startup standards. The first kind was national consensus standards, such as those published by the American National Standards Institute (ANSI) and the National Fire Protection Association (NFPA), which had already achieved wide industry acceptance. The second kind was established federal standardsstandards that had already gone through rulemaking under other federal statutes. These other statutes included the Construction Safety Act (applicable to government construction contracts), the Walsh-Healey Public Contracts Act (applicable to goods manufactured for the government), and the Longshore and Harbor Workers' Compensation Act (LHWCA) (applicable to the navigable waters of the United States). All agree that Congress intended that these startup standards would apply under the OSH Act without regard to their previous limitations...