505 F.2d 869 (10th Cir. 1974), 74-1049, Brennan v. Occupational Safety and Health Review Com'n

Docket Nº:74-1049.
Citation:505 F.2d 869
Party Name:Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Santa Fe Trail Transport Company, Respondents.
Case Date:October 23, 1974
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 869

505 F.2d 869 (10th Cir. 1974)

Peter J. BRENNAN, Secretary of Labor, Petitioner,

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Santa

Fe Trail Transport Company, Respondents.

No. 74-1049.

United States Court of Appeals, Tenth Circuit

October 23, 1974

Argued Sept. 11, 1974.

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Harry R. Silver (Carla A. Hills, Asst. Atty. Gen., Stephen F. Eilperin, Atty., Dept. of Justice, and William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, and Stephen C. Yohay, Asst. Counsel for Appellate Litigation, U.S. Dept. of Labor, of counsel, with him on the brief) for petitioner.

Allen H. Sachsel, Washington, D.C., Appellate Counsel, Occupational Safety and Health Review Commission, for respondent Commission.

Douglas McHendrie and Grant, Shafroth, Toll & McHendrie, Denver, Colo., entered an appearance for respondent Santa Fe Trail Transport Co. and waived the right to file a brief and make oral argument.

Richard C. Hotvedt, E. Carl Uehlein, Jr., and Ira M. Shepard, Washington, D.C., filed a brief for amicus curiae The Great Atlantic and Pacific Tea Co., Inc.

Before BREITENSTEIN, SETH and McWILLIAMS, Circuit Judges.

BREITENSTEIN, Circuit Judge.

The Occupational Safety and Health Review Commission held that a regulation promulgated by the Secretary of Labor under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., was unenforceably vague. As permitted by the Act, the Secretary seeks review of the Commission order. See 29 U.S.C. 660(b). We reverse.

After a routine inspection, the Secretary cited the employer, respondent Santa Fe Trail Transport Company, for a nonserious violation of 29 U.S.C. 654(a)(2). The charge was violation of a regulation, 29 CFR 1910.151(b), which requires that a person adequately trained in first aid be available at a workplace when there is no medical facility in 'near proximity.' A penalty of $30 was imposed. Employer contested the citation on the ground that the regulation was impermissibly vague. An Administrative Law Judge of the Commission, after an evidentiary hearing, upheld the regulation, found a violation, and held that no penalty should be assessed because of the 'good safety record' of the employer and 'the low level of gravity of those violations charged.' The matter then went to the Commission, see 29 U.S.C. 661(i), which in a 2 to 1 decision nullified the regulation.

This case is another episode in the continuing controversy between the Secretary and the Commission over the enforcement of the Act. The record shows no participation by the employer in the Commission's review of the action of its judge. The Great Atlantic & Pacific Tea Company secured permission to, and did, file a brief, as amicus curiae, with the Commission attacking the regulation. In this court the arguments are made by

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the Secretary and the Commission. A&P has filed an amicus brief supporting the Commission. Employer has presented a statement adopting 'the position' taken by the amicus and has waived the right to file brief...

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