National Indus. Constructors, Inc. v. Occupational Safety and Health Review Com'n

Citation583 F.2d 1048
Decision Date14 September 1978
Docket NumberNo. 77-1834,77-1834
Parties6 O.S.H. Cas.(BNA) 1914, 1978 O.S.H.D. (CCH) P 23,030 NATIONAL INDUSTRIAL CONSTRUCTORS, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent, Ray Marshall, Secretary of Labor, Co-Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Gregory B. Tobin, Ogletree, Deakins, Smoak & Stewart, Atlanta, Ga., for petitioner.

Karen E. S. Bray, Atty., U. S. Dept. of Labor, Washington, D. C., for respondent; Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Allen H. Feldman, Acting Counsel for Appellate Litigation, Dennis K. Kade, Asst. Counsel for Appellate Litigation, Scott H. Strickler, Asst. Counsel for Regional Litigation, U. S. Dept. of Labor, Washington, D. C., and Henry C. Mahlman, Associate Regional Sol., Denver, Colo., on brief.

Before GIBSON, Chief Judge, and LAY and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

National Industrial Constructors, Inc., petitions this Court 1 for review of an Administrative Law Judge's decision holding that National had violated certain regulations promulgated under the Occupational Safety and Health Act of 1970 (OSHA). The decision became a final agency order when the Occupational Safety and Health Review Commission (the Commission) declined to review it. 2 We affirm.

In early July, 1976, National, a construction company, was engaged in the construction of the Gerald Gentlemen Station (the Project), a fossil fuel power plant. On July 6, 1976, during construction, Gerald Benton, a National ironworker, fell fifty-four feet and suffered serious injuries. The next day, an OSHA compliance officer visited the Project to investigate the accident. On August 3, 1976, two citations were issued in which National was accused of violating several OSHA regulations. National filed a timely notice contesting the citations.

On October 1, 1976, the Secretary of Labor filed a complaint with the Commission essentially setting forth the allegations contained in the citations. After an evidentiary hearing, the Administrative Law Judge filed his decision and order. He held that National had violated 29 C.F.R. § 1926.450(a)(1) (1977), a serious violation, and 29 C.F.R. § 1926.21(b)(2) (1977), a nonserious violation. 3

In this appeal, National contends that: (1) 29 C.F.R. § 1926 4 was not validly promulgated by the Secretary of Labor; (2) the Secretary's complaint should have been dismissed because under Commission Rule 33(a)(1), 29 C.F.R. § 2200.33(a)(1) (1977), it was not timely filed; (3) 29 C.F.R. § 1926.21(b)(2) is unenforceably vague; and (4) there is insubstantial evidence in the record to support the violations. 5

I.

PROMULGATION OF 29 C.F.R. § 1926

A.

Under Section 6 of OSHA, 29 U.S.C. § 655 (1970), the Secretary of Labor is authorized to promulgate standards 6 to further the objectives of OSHA. Section 6(b), 29 U.S.C. § 655(b) (1970), enumerates the procedures with which the Secretary must comply when promulgating new standards. Under Section 6(a), 29 U.S.C. § 655(a) (1970), however, the Secretary may avoid these procedures as well as the notice and publication requirements of the Administrative Procedure Act (APA), See 5 U.S.C. § 553 (1976), by adopting, as an OSHA Standard, "any established Federal standard." Established federal standards are defined in OSHA as "any operative occupational safety and health standard established by any agency of the United States and presently in effect." 29 U.S.C. § 652(10) (1970). Because OSHA became effective April 28, 1971, any federal safety and health regulation in effect on that date could be summarily adopted by the Secretary and included in OSHA's regulation under Section 6(a) as an "established Federal standard."

Acting under Section 6(a) of OSHA, the Secretary adopted, as OSHA regulations, 29 C.F.R. § 1926 (1977), See supra note 5, which had been promulgated pursuant to Section 107 of the Construction Safety Act, 40 U.S.C. § 333 (1970). National argues that the Construction Safety Act regulations had not been validly promulgated and were not "established Federal standards." Thus, they could not have been adopted by the Secretary as OSHA regulations under Section 6(a).

Section 107 of the Construction Safety Act requires the Secretary of Labor, in promulgating regulations, to comply with the requirements of 5 U.S.C. § 553 (1976) of the APA. Section 553 requires, Inter alia, that proposed regulations be published in the Federal Register for thirty days prior to the date upon which they become effective unless the agency finds good cause justifying a shortened publication period.

The Construction Safety Act regulations were published in the Federal Register for seven and ten days prior to their effective date rather than for thirty days as specified in 5 U.S.C. § 553 (1976) of the APA. See 36 Fed.Reg. 7340 (1971), Infra note 7. The Secretary included a statement of "good cause" in support of his decision to expedite the effective date of the regulations. 7

National points out that the Construction Safety Act regulations became effective on April 27, 1971, one day before OSHA's effective date. Had the Secretary not expedited publication of these regulations, they would not have been existing federal standards on April 28, 1971, the date OSHA became effective, and the Secretary, in promulgating the regulations as OSHA standards, would have had to comply with the more detailed promulgation requirements of Section 6(b) of OSHA. National implies that the Secretary's desire to promulgate summarily the Construction Safety Act regulations as OSHA standards was the Secretary's principal reason for shortening the period of publication in the Federal Register. National argues that the Secretary incorrectly categorized the Construction Safety Act regulations as appropriate for expedition under the good cause exception in 5 U.S.C. § 553(d)(2) (1976). Thus, National argues, because the Secretary did not publish the Construction Safety Act regulations in the Federal Register for thirty days as the APA requires and erroneously relied upon the good cause exception, the regulations were not "existing Federal standards" and could not have been summarily adopted by the Secretary as OSHA regulations under Section 6(a).

B.

Before addressing National's claim that 29 C.F.R. § 1926 was invalidly promulgated, we must initially decide whether a party may raise in this enforcement proceeding the Secretary's failure to comply procedurally with the publication requirements of 5 U.S.C. § 553 (1976) of the APA. 8

Under Section 6(f) of OSHA, 29 U.S.C. § 655(f) (1970), the statute provides for pre-enforcement review of standards promulgated by the Secretary of Labor. This provision permits a party, who may be adversely affected by an OSHA standard, to challenge its validity in a United States court of appeals within sixty days from the time the standard becomes effective.

National did not proceed under Section 6(f). Rather, it raised the manner in which 29 C.F.R. § 1926 had been promulgated as a defense in the enforcement proceeding instituted by the Commission.

The Agency, relying upon Daniel Construction Co., OSHRC Docket Nos. 7734 & 7672 (Feb. 10, 1977), (1976-1977) Occup.Saf. & Health Dec. (CCH) P 21,521, in which the Commission sustained the Secretary's reliance on "good cause" in support of his decision to publish the Safety Act regulations in the Federal Register for less than thirty days, rejected National's promulgation claim. National then filed this action under Section 11(a) of OSHA, 29 U.S.C. § 660(a) (1970), to review the Agency's decision. In this appeal, National renewed its claim that the regulations had been invalidly promulgated.

We must decide whether procedural claims of invalidity may be raised in an enforcement proceeding before the Commission from which appeals are taken to this Court under Section 11(a) of OSHA, or whether such claims must exclusively be made in this Court under Section 6(f) of OSHA within sixty days from the time the regulations become effective.

Congress has discussed the scope intended for pre-enforcement review under Section 6(f).

While (Section 6(f)) would be the exclusive method for obtaining pre-enforcement judicial review of a standard, the provision does not foreclose an employer from challenging the validity of a standard during an enforcement proceeding.

S.Rep.No.91-1282, 91st Cong., 2d Sess. Reprinted in (1970) U.S.Code Cong. & Admin.News, pp. 5177, 5184.

It seems apparent that, at least for substantive attacks, Congress did not intend pre-enforcement review under Section 6(f) to be the exclusive method for challenging the validity of a regulation. At least one court of appeals has held that the substantive validity of a regulation may be raised in an enforcement proceeding under Section 11(a), as well as under Section 6(f) of OSHA. See Atlantic & Gulf Stevedores v. OSHRC, 534 F.2d 541, 549-550 (3d Cir. 1976). See also Arkansas-Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649, 652-653 (8th Cir. 1976).

When Congress has provided more than one avenue of judicial review, an employer's right to challenge on substantive grounds an allegedly arbitrary or unreasonable regulation should not be limited to a period prior to enforcement immediately following the regulation's effective date.

Because the filing of a pre-enforcement petition to review will not ordinarily operate as a stay of the standard, See § 6(f), 29 U.S.C. § 655(f), enforcement proceedings may commence before even an initial determination of validity has been made. Unless the Commission is authorized to consider defenses of invalidity, it will be reduced to rubber-stamping possibly invalid citations, and employers will for an interim period be deprived of any remedy for sanctions imposed contrary to law.

Moreover, it may become evident that a particular safety standard is...

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