Brennan v. Occupational Safety and Health Com'n, 74-1518

Citation513 F.2d 553
Decision Date28 March 1975
Docket NumberNo. 74-1518,74-1518
Parties2 O.S.H. Cas.(BNA) 1668, 1974-1975 O.S.H.D. ( 19,465 Peter J. BRENNAN, Secretary of the United States Department of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH COMMISSION and Kesler & Sons Construction Company, Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

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 the citation, and if such notice be not given, then the citation becomes a nonreviewable final order. § 659(a) reads in its entirety as follows:

"(a) If, after an inspection or investigation the Secretary issues a citation under section 658(a) of this title, he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under section 666 of this title and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty. If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees under subsection (c) of this section within such time, the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency."

29 U.S.C. § 659(b) provides, in pertinent part, that where the Secretary has reason to believe that an employer has failed to correct a violation within the time limitation fixed in the citation, the Secretary shall notify the employer of such failure and the additional penalty to be assessed. The employer in such circumstance has fifteen working days within which to contest the Secretary's notification, or the notification and assessment become a final order of the Commission and not subject to review. § 659(b) reads in its entirety as follows:

"(b) If the Secretary has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction (which period shall not begin to run until the entry of a final order by the Commission in the case of any review proceedings under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties), the Secretary shall notify the employer by certified mail of such failure and of the penalty proposed to be assessed under section 666 of this title by reason of such failure, and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the Secretary's notification or the proposed assessment of penalty. If, within fifteen working days from the receipt of notification issued by the Secretary, the employer fails to notify the Secretary that he intends to contest the notification or proposed assessment of penalty, the notification and assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency." (Emphasis added).

29 U.S.C. § 662 generally confers jurisdiction upon the United States district courts, upon petition of the Secretary, to restrain any hazardous employment condition of such an emergent nature as to require speedier action than is otherwise permitted by the citation procedure.

The foregoing constitute those sections of the Act which counsel believe have possible bearing on our disposition of this petition for review. Let us now examine events relating to the present controversy.

Kesler & Sons Construction Company was engaged in sewer construction work near Oakley, Utah. On November 4, 1971, a representative of the Secretary inspected the worksite where employees of Kesler were digging trenches and laying pipes. As a result of this inspection, the Secretary on November 12, 1971, issued Kesler a citation for noncompliance with certain safety standards. The citation ordered immediate abatement for all violations and assessed penalties totaling $75. Kesler did not contest this citation.

The citation alleged some seven violations of occupational safety standards. The first violation, and perhaps the most serious one, was the failure of Kesler to shore, sheet, brace, slope, or otherwise support the sides of trenches in unstable or soft material. The other violations concerned Kesler's failure to provide an adequate supply of potable water, to maintain toilet facilities, to post legible traffic signs in construction areas at points of hazard, to conspicuously post telephone numbers of doctors, hospitals and ambulances, to provide proper protective equipment for the employees' feet, and to post a notice advising employees of the protection and obligations provided by the Act.

On November 30, 1971, a representative of the Secretary reinspected the worksite and found that four of the violations contained in the earlier citation, including the failure to shore the trenches, had not been corrected. In addition, the earlier citation itself had not been...

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