Kiewit Power Constructors Co. v. Secretary of Labor, No. 18-1282 (D.C. Cir. 2020)Annotate this Case
Kiewit contested its OSHA citation, arguing that the quick-drenching provision in 41 C.F.R. 50-204.6(c), which requires quick-drenching eyewash facilities for workers exposed to corrosive materials, was invalidly applied to the construction industry without notice-and-comment rulemaking. The ALJ and Commission agreed with Kiewit.
After determining that it had jurisdiction over the petition for review, the DC Circuit denied Kiewit's motion for leave to add rebuttal arguments. On the merits, the court held that the Occupational Health and Safety Act is ambiguous regarding the Secretary's authority to apply established Federal standards to new industries under section 6(a). The court also held that the Secretary's interpretation of his section 6(a) authority is permissible and therefore owed deference by the Commission. Considering, among other factors, the OSH Act's stated purpose of expanding workplace protections and section 6(a)'s instruction that, in the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees, the court found that the Secretary's interpretation is consistent with the OSH Act and is therefore entitled to Chevron deference.