513 F.2d 553 (10th Cir. 1975), 74-1518, Brennan v. Occupational Safety and Health Com'n

Docket Nº:74-1518.
Citation:513 F.2d 553
Party Name:Peter J. BRENNAN, Secretary of the United States Department of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH COMMISSION and Kesler & Sons Construction Company, Respondents.
Case Date:March 28, 1975
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 553

513 F.2d 553 (10th Cir. 1975)

Peter J. BRENNAN, Secretary of the United States Department

of Labor, Petitioner,

v.

OCCUPATIONAL SAFETY AND HEALTH COMMISSION and Kesler & Sons

Construction Company, Respondents.

No. 74-1518.

United States Court of Appeals, Tenth Circuit

March 28, 1975

Page 554

Carla A. Hills, Asst. Atty. Gen., and Stephen F. Eilperin and Judith S. Feigin, William J. Kilberg, Benjamin W. Mintz, Michael H. Levin, Marc R. Hillson, Attys., Dept. of Labor, on brief for petitioner.

D. Richard Smith, Morgan, Scalley, Lunt & Kesler, Salt Lake City, Utah, on brief for respondent Kesler & Sons Const. Co.

Before SETH, McWILLIAMS and BARRETT, Circuit Judges.

McWILLIAMS, Circuit Judge.

This case arises under the Occupational Safety and Health Act of 1970 and requires interpretation of certain provisions of that Act. 29 U.S.C. § 651 et seq. The issue is whether the Secretary of Labor can order immediate abatement of a safety hazard and then reinspect in less than fifteen working days after the issuance of the citation calling for immediate abatement. The Occupational Safety and Health Review Commission held, in effect, that in connection with any citation issued by the Secretary there is under the Act a built-in "grace period" of fifteen working days, during which time there can be no reinspection.

The Secretary then filed a petition in this Court to review the order thus entered by the Commission. 29 U.S.C. § 660. Our study of the matter convinces us that the Commission's order is in error and that the interpretation which the Secretary would give the Act is the proper one.

At the outset it should be mentioned that the interpretation given a statute by the administrative agency charged with carrying out the mandate of the statute should be given great weight. Indeed, the interpretation given a statute by the administrative agency charged with its enforcement should be accepted by the courts, if such interpretation be a reasonable one. And this is true even though there may be another interpretation of the statute which is itself equally reasonable. Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974), and Board of Directors and Officers, Forbes Federal Credit Union v. National Credit Union Administration, 477 F.2d 777 (10th Cir. 1973), cert. denied, 414 U.S. 924, 94 S.Ct. 233, 38 L.Ed.2d 158 (1973). Thus, in the instant case, the interpretation argued for by the Secretary should be accepted by us if it be a reasonable one. And we conclude that the interpretation argued for by the Secretary is indeed a reasonable one and in fact carries out the true intent of Congress. Before examining the facts of this case, let us first look at those sections of the Act which have bearing on the present problem.

29 U.S.C. § 658(a) authorizes the Secretary, after an inspection or investigation, to issue a citation to an employer who the Secretary believes has violated any standard, rule, or order promulgated pursuant to the provisions of the Act. That section of the Act also provides that the citation shall set a reasonable time for the abatement of the violations. § 658(a) reads in its entirety as follows:

"(a) If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 654 of this title, of any standard, rule or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the chapter, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health." (Emphasis added).

If the Secretary issues such a citation, 29 U.S.C. § 659(a) allows the employer fifteen working days within which to notify the Secretary that he intends to contest

Page 555

the citation, and if...

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