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

Last Updated: October 9 2018
Article by Arthur G. Sapper

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.


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 standards—standards 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 to government contracting or navigability.

But what about those standards’ original limitations to construction, manufacturing and maritime employment? Did Congress intend that OSHA would strip away those limitations too? Would maritime standards apply also to manufacturing or agriculture? Would construction standards apply also to manufacturing? Would manufacturing standards apply also to construction or diving? Would chaos reign?

OSHA’s immediate—and sensible—answer was no.  When OSHA first adopted the startup standards as OSHA standards on May 29, 1971, it adopted regulations that continued to limit the established federal standards to the industries they originally were designed to regulate.

Thus, the construction standards adopted under the Construction Safety Act would continue to apply only to construction; the maritime standards adopted under the LHWCA would continue to apply only to maritime work; and, crucially for this case, the manufacturing standards derived from the Walsh-Healey Act would continue to apply only to manufacturing. The regulation that so limited the Walsh-Healey Act-derived manufacturing standards was 29 C.F.R. § 1910.5(e).

But several months later, OSHA changed its mind. Without any explanation, without giving the public an opportunity to comment, and without finding that manufacturing standards could feasibly be applied to construction work, on September 9, 1971, OSHA revoked § 1910.5(e), the regulation that had limited the Walsh-Healey Act-derived standards in Part 1910 to manufacturing. The notice of revocation of § 1910.5(e) was so short, abstrusely worded, and obscurely placed in the Federal Register, and the OSH Act was then so young, that employers failed to notice that OSHA had violated what would soon be recognized as a cardinal rule governing OSHA’s adoption of startup standards—that it was not permitted to substantively change them without rulemaking. Substantively changing them would mean that OSHA was not adopting the startup standards, but rather standards of its own invention.

An Ogletree Deakins attorney, however, did spot OSHA’s obscure 1971 move and challenged its validity.

The Commission’s Decision

The Commission majority agreed with Ogletree Deakins that OSHA’s revocation in September 1971 of § 1910.5(e) was unlawful and that the eyewash standard written for manufacturing sites under the Walsh-Healey Act could not be validly applied to construction without undergoing notice-and-comment rulemaking. “We conclude that section 6(a) did not authorize the Secretary to apply the [Walsh-Healey] quick-drenching standard to construction employers without notice-and-comment rulemaking.”

In so concluding, the Commission agreed with several of Ogletree Deakins’ main arguments, including arguments relying on 5 U.S.C. § 559, the anti-supersession provision of the Administrative Procedure Act, and the legislative history of the OSH Act. For example, the Commission agreed with Ogletree Deakins that “[a]pplying the Secretary's interpretation here would allow him to adopt and apply a [Walsh-Healey Act manufacturing] standard to an entirely different industry, one that had no reason or incentive to participate in its original promulgation because it was not affected by the rulemaking. Depriving the construction industry of its ‘opportunity to participate’ in the rulemaking process is contrary to the OSH Act's language and intent.”

The Commission also adopted another Ogletree Deakins argument when it noted “the absurdities that could result from [the Secretary’s] proposed interpretation of section 6(a)—for example, that maritime or shipbuilding standards could be applied to the manufacturing industry, or construction standards could be applied to the agricultural industry.”

Commissioner Attwood dissented.

Implications of the Decision

The most immediate implication of the decision for employers performing construction work is that they may no longer be cited under any OSHA eyewash or shower standard derived from the Walsh-Healey Act manufacturing standard; this includes both § 1926.50(g) and § 1910.151(c). There may be other standards in the same position.

The case is Secretary of Labor v. Kiewit Power Constructors Co., No. 11-2395 (issued September 28, 2018).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions