                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            OCT 18 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MANSON CONSTRUCTION                              No.   17-71736
COMPANY,
                                                 LABR No. 14-0816
              Petitioner,

 v.                                              MEMORANDUM*

SECRETARY OF LABOR,

              Respondent.


                     On Petition for Review of an Order of the
                               Department of Labor

                            Submitted October 10, 2018**
                                Seattle, Washington

Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.

      Petitioner Manson Construction Company (“Manson”) petitions for review

of an order of the Occupational Safety and Health Review Commission

(“Commission”) concluding that Manson committed violations of 29 C.F.R.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§§ 1926.501(b)(1) and 1926.1431(b)(1). We have jurisdiction to hear the petition

pursuant to 29 U.S.C. § 660(a), and “we review the Commission’s findings for

substantial evidence.” R. Williams Constr. Co. v. Occupational Safety & Health

Review Comm’n, 464 F.3d 1060, 1063 (9th Cir. 2006); see also 29 U.S.C. § 660(a).

We deny the petition for review.1

      1.     Manson does not dispute that its employee on top of the dolphin was

not wearing fall protection and was working over six feet above the water, in

violation of 29 C.F.R. § 1926.501(b)(1), but alleges it was infeasible to implement

fall protection. Generally, an employer alleging infeasibility must show that: (1)

the means of compliance prescribed by the standard are technologically or

economically infeasible because the standard’s implementation or necessary work

operations would be infeasible; and (2) an alternative protective measure was used

or there was no feasible alternative measure. See V.I.P. Structures, Inc., 16 BNA

OSHC 1873 (No. 91-1167, 1994). Here, Manson must show that it would have

been infeasible to employ “the use of guardrail systems, safety net systems, or

personal fall arrest systems.” See 29 C.F.R § 1926.501(b)(1). Substantial evidence

supports the Commission’s determination that: (1) Manson failed to address why

the use of guardrail systems or safety net systems would have been infeasible; and


      1
             As the parties are familiar with the facts, we do not recount them here.
                                          2
(2) Manson failed to show that it had implemented alternative protective methods,

or that there were no feasible alternative means available. The Commission thus

did not err by determining that Manson failed to prove its affirmative defense.

      2.     Manson does not dispute that it failed to guard one side of its jilly lift,

in violation of 29 C.F.R. § 1926.1431(b)(1), but alleges that compliance with the

standard was infeasible. Manson also does not dispute that it would have been

physically possible to install a fourth guardrail. Instead, Manson contends that a

fourth guardrail would block its employees from adequately accessing the dolphin

and would create the hazard of pinch points. However, substantial evidence

supports the Commission’s conclusion that: (1) Manson failed to explain why it

could not use a detachable guardrail on its jilly lift while the platform was being

used to hoist or move Manson’s employees; and (2) Manson failed to show that it

had implemented alternative protective methods, or that there were no feasible

alternative means of doing so. The Commission thus did not err by concluding that

Manson failed to prove the infeasibility of compliance with 29 C.F.R.

§ 1926.1431(b)(1).

      3.     Manson failed to articulate the greater hazard defense and therefore

waived any argument that compliance with 29 C.F.R. §§ 1926.501(b)(1) and

1926.1431(b)(1) would have created a greater hazard. See Smith v. Marsh, 194


                                           3
F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by a party in

its opening brief are deemed waived.”).

      PETITION DENIED.




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