First, the Court reviews the Commission's interpretation of § (a)(2) to determine whether it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Empire Co. v. Occupational Safety Health Review Comm'n, 136 F.3d 873, 874 (1st Cir. 1998); see also Reich v. Simpson, Gumpertz Heger, Inc., 3 F.3d 1, 2 (1st Cir. 1993). In making this determination, "'an agency's construction of its own regulations is entitled to substantial deference.'"
We review the Commission's legal conclusions to determine whether they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See P. Gioioso Sons, Inc. v. Occupational Safety Health Review Comm'n, 115 F.3d 100, 107-08 (1st Cir. 1997) (citing 5 U.S.C. § 706 (2)(A)); Reich v. Simpson, Gumpertz Heger, Inc., 3 F.3d 1, 2 (1st Cir. 1993). "In making these determinations we must be mindful that an agency's construction of its own regulations is entitled to substantial deference."
In part (2), the term "of each of his employees" limits the term "places of employment" such that the employer shall protect the places of employment where the employer actually has employees. See Reich v. Simpson, Gumpertz Heger, Inc., 3 F.3d 1, 4-5 (1st Cir. 1993) (holding that the plain language of § 1910.12(a) establishes a duty of employers to protect only those construction sites where they have employees). Unlike part (1), part (2) of the regulation does not limit the employer's duty to protect only the employer's own employees.
As observed by the First Circuit, “OSHA placed primary responsibility on employers, those individuals who oversee and control the work environment, to achieve compliance with its standards and insure a safe workplace.” Reich v. Simpson, Gumpertz & Heger, Inc., 3 F.3d 1, 4 (1st Cir.1993) (citing S.Rep. No. 1282, 91st Cong., 2d Sess. 9 (1970), reprinted in 1970 U.S.C.C.A.N. 5177, 5186 (“Employers have primary control of the work environment and should insure that it is safe and healthful.”)); see also Lindsey v. Caterpillar, Inc., 480 F.3d 202, 208 (3d Cir.2007) (“The Act is limited in scope, however, as jurisdiction under the Act extends only to the employee-employer relationship within the workplace.”)
Others standards are known as "industry-specific standards" because they apply only to specific industries, such as, for example, the maritime or construction industry. See Modern Cont'l Constr. Co., 305 F.3d at 49 ; Reich v. Simpson, Gumpertz & Heger, Inc., 3 F.3d 1, 4 (1st Cir. 1993). OSHA health and safety standards, "require[ ] conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment."
Since the court did not set forth its reasoning, we may affirm based on any dispositive issue that is both readily evident and sufficiently supported by the record. See Reich v. Simpson, Gumpertz Heger, Inc., 3 F.3d 1, 4 (lst Cir. 1993). Hence our search for such an issue.
The construction-industry standards were adopted shortly after the passage of the OSH Act, and are comprised of federal standards that had previously been promulgated under the Construction Safety Act of 1969, 40 U.S.C. § 333. See Reich v. Simpson, Gumpertz Heger, Inc., 3 F.3d 1, 4 (1st Cir. 1993). The construction-industry standard applicable to MCC's first citation provides: "The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury."
Other circuits have recognized the applicability of this regulation. See Reich v. Simpson, Gumpertz Heger, Inc., 3 F.3d 1, 4 (1st Cir. 1993); Cleveland Elec. Illuminating Co. v. OSHRC, 910 F.2d 1333, 1335 (6th Cir. 1990); National Eng'g and Contracting Co. v. OSHRC, 838 F.2d 815, 817 (6th Cir. 1987); Brock, 828 F.2d at 376 (6th Cir. 1987); Underhill Constr. Corp. v. Secretary of Labor, 526 F.2d 53, 55-56 (2d Cir. 1975).We similarly find the regulation applicable.
The OSH Act, in no uncertain terms, places primary responsibility for workplace safety on employers, not on the federal government. See 29 U.S.C. § 654(a); Reich v. Simpson, Gumpertz Heger, Inc., 3 F.3d 1, 4 (1st Cir. 1993). IV. CONCLUSION
29 C.F.R. § 1910.12(a). ACR points to Reich v. Simpson, Gumpertz Heger, Inc., 3 F.3d 1 (1st Cir. 1993), a case in which the court found that an engineering firm which had given faulty advice which led to the collapse of part of a building under construction could not be held liable under the construction industry regulations of § 1910.12. The court in Simpson said: