Secretary of Labor v. Occupational Safety and Health Review Commission, and Wagner Construction Co., Inc.

In this unusual case, the Secretary of Labor petitions for review of a final order of the Occupational Safety and Health Review Commission interpreting 29 C.F.R. § 1926.152 (c)(3) (the Regulation) to apply only when the flammable or combustible liquids to which it relates are stored in proximity to a building. In this unopposed petition, the Secretary argues that the Regulation, which is reproduced in the margin, is not so limited. Because we believe the Secretary’s interpretation of the Regulation is reasonable, we reverse the Commission’s order.

I.

At the time the disputed citation was issued, Wagner Construction Co., Inc. (Wagner) was engaged in excavating a tunnel for the planned Los Angeles Metro Rail System. In the equipment yard at one excavation site, Wagner kept a 550-gallon diesel tank, which it used to fuel its trucks and equipment. Following an inspection by a compliance officer of the Occupational Safety and Health Administration, a citation issued,, charging among other things that Wagner had violated the Regulation by failing to properly slope or enclose the area around the tank.

The Secretary characterized the violation as serious under 29 U.S.C. § 666 (k)…