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Steel Joist Institute v. Occupational Safety & Health Administration

Petition challenging OSHA's final rule concerning safety standards for steel erection denied because requirements that steel joists be "field bolted" temporarily during steel erection were supported by substantial evidence; Occupational Safety and Health Act does not require specific evidence of past injury to justify standards to prevent future injury from a likely hazard.

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Argued February 20, 2002

On Petition for Review of an Order of the Occupational Safety and Health Administration

On August 13, 1998 the Occupational Safety and Health Administration (OSHA) proposed revised “Safety Standards for Steel Erection” based on a consensus document submitted by a rulemaking advisory committee in a negotiated rulemaking. 63 Fed. Reg. 43,452 (1998). After a public hearing, two comment periods and a public consultation meeting, OSHA issued its final rule on January 18, 2001. See 66 Fed. Reg. 5196 (2001). The Steel Joist Institute (Institute) asks the court to invalidate three provisions of the final rule’s safety standard for open web steel joists. The three provisions are codified at 29 C.F.R. s 1926.757(a)(1)(iii), 29 C.F.R. s 1926.757(a)(3) and 29 C.F.R. s 1926.757(a)(8). Because the Institute presented argument against section 1926.757(a)(3) for the first time in its reply brief, its challenge to this provision is waived. See Benkelman Telephone Co. v. FCC, 220 F.3d 601, 607 n.10 (D.C. Cir. 2000) (argument found “waived because … raised for the first time in the petitioners’ reply brief”) (citing Grant v. United States Air Force, 197 F.3d 539, 543 (D.C. Cir. 1999) (citing Fraternal Order of Police v. United States, 173 F.3d 898, 902-03 (D.C. Cir. 1999)). As explained below, we reject the Institute’s objections to section 1926.757(a)(1)(iii) and section 1926.757(a)(8), which require “field bolting” of steel joists, because they are authorized by section 6(b) of the Occupational Safety and Health Act of 1970, 29 U.S.C. s 655(b), (Act) and they are supported by substantial evidence.

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